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June 2007
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Further thoughts on Bong Hits for Jesus

Congratulations, Joseph Frederick!
At age 18, Frederick was fed up with his lack of rights as a student and decided to shake things up a bit. Take a provocative nonsense slogan from a surfboard, put it on a banner, and see if maybe the TV cameras will pick it up. It succeeded beyond his wildest dreams — the predictable over-reaction by authority, the subsequent firestorm of publicity, Ken Starr, the Supreme Court, finally ending up with the Justices of the Supreme Court debating the meaning of the phrase, and the entire country having a discussion about the rights of students. Not bad. (Current Google count: “Bong Hits 4 Jesus” 935,000; “Chief Justice John Roberts” 273,000)
The majority on the Supreme Court looked pretty silly on this one. The bizarre way in which they determined to make “Bong Hits 4 Jesus” be specific advocacy for illegal behavior is surreal.

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could beinterpreted as an imperative: ‹[Take] bong hits . . .ŠÖa message equivalent, as Morse explained in her declaration, to ‹smoke marijuanaŠ or ‹use an illegal drug.Š Alternatively, the phrase could be viewed as celebrating drug useÖ‹bong hits [are a good thing],Š or ‹[we take] bong hitsŠÖand we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is ‹meaningless and funny.Š The dissent similarly refers to the sign‰s message as ‹curious,Š ‹ambiguous,Š ‹nonsense,Š ‹ridiculous,Š ‹obscure,Š ‹silly,Š ‹quixotic,Š and ‹stupid,Š Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.

There’s almost a… petulance on the part of the Justices. Just like a school principal who feels “out of it,” there’s a fear of kids pulling one over on them. “Oh, no, you can’t fool me. I know what it means!” And so they, too, walk right into the trap set for them by Fredericks, and give the phrase a whole lot more power than it had.
The dissent really gets it right when they say:

When First Amendment rights are at stake, a rule that ‹sweep[s] in a great variety of conduct under a general and indefinite characterizationŠ may not leave ‹too wide a discretion in its application.Š Therefore, just as we insisted in Tinker that the school establish some likely connection between thearmbands and their feared consequences, so too JDHS must show that Frederick‰s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.
But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it puntsis tricky; ‹[t]he mode of analysis [it] employ[s] is not en-tirely clear,Š On occasion, the Court suggests it is deferring to the principal‰s ‹reasonableŠ judgment that Frederick‰s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner‰s message constitutes express advocacy. Either way, its approach is indefensible.

The majority screwed up.
But the good news is that the results of the screw-up are likely to be limited. There’s been no ruling that allows schools to censor anything that interferes with their message. There’s been no ruling allowing schools to censor political advocacy speech regarding drugs. What we’ve got is a confusing blip about a particular phrase in a particular location that will create some argument in future situations over whether a different nonsense phrase constitutes political speech or the advocacy of illegal drugs, and some more of those cases will come back to the Court.
Ultimately, this case may well be remembered for words that were not in the main opinion. These are words that may resonate for years to come, in cases beyond the unfurling of a banner at a school-released event.

I join the opinion of the Court on the understanding that… it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’

– Justice Samuel Alito

Surely our national experience with alcohol should make us wary of dampening speech suggesting–however inarticulately–that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

– Justice John Paul Stevens

Nice going, Joseph!
[More interesting reading on the case by Eugene Volokh and Scott Morgan and, of course, if you’re needing to catch up on the background, visit my comprehensive Bong Hits 4 Jesus page.]

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