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RJ Eskow

RJ Eskow

Posted: March 21, 2007 11:53 AM

'Bong Hits' Case: Scalia and Starr Meet Cypress Hill


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These are strange days for our system of justice, but they serve to remind us of the political usefulness of absurdity. On one side is noted pornographer Kenneth Starr, who spent $40 million in taxpayer money collecting and disseminating lewd and irrelevant information about Bill Clinton. The man who once spread obscene material throughout the media for no purpose other than political embarrassment is now being paid to argue for the suppression of non-salacious (and seemingly nonsensical) speech from a high school student. And the student's speech didn't cost millions, but was literally "free."

Based on the first day of hearings in the "bong hits" case, Starr has an ally in the the increasingly eccentric Antonin Scalia, whose public utterances in recent years have become as hallucinogenic as this young student's. (Remember "quack quack"?) An unlikely set of interests stands against them, one that apparently includes Samuel Alito as well as Jerry Falwell, the ACLU, and people like me.

You know the details by now: Students in Juneau are dismissed from class to watch the Olympic torch pass by. Some students unfurl a banner across the street from the school that says "Bong Hits 4 Jesus." One student is caught and given detention. Said detention is increased when he refuses to name his co-conspirators.

(First they punish this kid for speech. Then they punish him for not speaking.)

Everybody wants to know: What does "Bong Hits 4 Jesus" mean? Personally, I'm enjoying the fact that nobody knows. The spirit of Surrealism that was pioneered by Breton and his colleagues in Paris nearly 100 years ago is alive and well in Juneau, Alaska.

This case illustrates the political usefulness of absurdity, too. It forces Starr and his colleagues (including the Administration) to argue vehemently for the suppression of speech they don't even understand. That's a perfect way to iillustrate the Kafkaesque nature of all repression of our civil liberties.

Bong hits 4 Jesus. Were they saying that you'll see God if you get stoned? Were they echoing Marx's critique of religion as "the opiate of masses"? Or did they just repeat something meaningless that sounded funny to them? I'd guess it's the last one, but I think it's better for America if nobody knows for sure.

They might even be saying, through the use of irony, that drug use is antithetical to the values of a Christian nation. Wouldn't that be interesting?

To his credit, Joseph Frederick isn't explaining it. My best guess is that they were listening to Cypress Hill when they came up with it. Cypress Hill are the L.A. rappers known for "Insane In the Brain" ("insane in the membrane") and "Hits From the Bong" (wherein they observe that bong water smells bad when it gets on the carpet.)

Cypress Hill may "glorify drug use," but at least they make sense. That's more than can be said for Starr, Scalia, and their allies on this case. There are only two possibilities, after all: Either this speech had meaning and was political in nature, in which case it's protected. Or it had no meaning, in which case the principal had no valid reason for supressing it and punishing Mr. Frederick.

There's no third option. That simple fact renders Starr's entire argument absurd. In fact, the notion of censoring speech you don't even understand should cause embarrassment to any thinking person - but Starr's past behavior has demonstrated that he has a high tolerance for embarrassment.

A number of evangelical Christian groups have joined this case because they're afraid that proselytizing speech could be banned from schools should the Juneau School Board win this case.

They're right. It could happen. In fact, since these students weren't on school property, students could be forbidden from talking up the benefits of religion - or atheism, for that matter - anywhere they go. The School Board's asking for a ubiquitious ban on young people's rights of speech anywhere as long as they are enrolled in school.

Even abstract speech could be banned, since this banner was in fact abstract in nature. By "abstract," I mean that its content and meaning are not readily apparent and are subject to varying interpretations. Starr, the Administration, and the Juneau School Board are suppressing it in the belief that they have a vague sense of its meaning and intent, despite the fact that they can't decipher its actual content.

By logical extension, a student could be suspended for drawing a line on the grounds that it might represent a penis, or a triangle on the grounds that it might represent a woman's ... you know what. (They don't like the "v" word in Starr-land.)

Mr. Kandinsky, it's my duty to inform you you're under arrest for distributing pornography.

What are Starr and his employers at the School Board smoking? Whatever it is, Scalia's been taking hits from the same bong, judging from his questioning during the case's first day. As this report indicates, Scalia thinks the school board has the right to suppress speech that contradicts the board's position on drugs - even if the speech takes place off-campus. The New York Times' coverage makes clear that John Roberts feels the same way, while Alito appears sympathetic to the student's free speech position.

But none of the justices appeared ready to go as far as the Bush Administration, which took a radical anti-free speech position in this case. Deputy Solicitor General Edwin Kneedler argued that the banner was "disruptive" under the precedent of the Tinker case, solely because the banner's message contradicted the school's position on drug use.

It's important to note yet again that the banner's message has not been decoded, rendering Kneedler's assertion meaningless. That aside, his position was so extreme that even Scalia didn't appear to endorse it. The Administration is apparently arguing that students don't have the right to express opinions that contradict their school board in any public place.

Hasn't Mr. Kneedler or his boss Alberto Gonzales read the Constitution? (Forget it: it's a rhetorical question.)

Don't they realize that their position flies in the face of our civil liberties? On a practical level, it will alienate their conservative and evangelical allies. What are they thinking?

They must be insane in the membrane.


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