He Should've Said: "Legalize Bong Hits 4 Jesus"

In reading today's Supreme Court's decision on Morse v. Frederick, the case of the student in Juneau, Alaska, who unfurled a banner reading "BONG HiTS 4 JESUS" and was subsequently suspended (you can read the story here or at the Washington Post to get the details of the case), one conclusion is crystal-clear: Kids, if you're going to unfurl such a banner in an effort to get on national television, make sure that you state your case as: 'LEGALIZE BONG HiTS 4 JESUS'. Because then the First Amendment will protect you.

One other striking conclusion is that Joseph Frederick should have told his attorneys to explore the religious nature of his banner as well. In the 29 pages of text in the Supreme Court's decision, the word "Jesus" only appears whenever the justices are quoting the sign's text. Not once is the sign's message actually taken at face value. I have argued this legal reasoning before, that he should have also explored a "freedom of religion" First Amendment issue as well, but because his lawyers (and his own statements) never actually brought the subject up, the Supreme Court was free to ignore such reasoning.

This is not to say that the first part of the message wasn't parsed in great detail by the court. From the majority opinion:

"The common-sense understanding of the phrase 'bong hits' is that it is a reference to a means of smoking marijuana. Given [Frederick's] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick's] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. [Frederick's] speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school's educational mission to educate students about the dangers of illegal drugs and to discourage their use."

And from further on:

The message on Frederick's banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed "that the words were just nonsense meant to attract television cameras." But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.

As Morse later explained in a declaration, when she saw the sign, she thought that "the reference to a 'bong hit' would be widely understood by high school students and others as referring to smoking marijuana."

. . .

We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: "[Take] bong hits . . . " -- a message equivalent, as Morse explained in her declaration, to "smoke marijuana" or "use an illegal drug." Alternatively, the phrase could be viewed as celebrating drug use -- "bong hits [are a good thing]," or "[we take] bong hits" -- and 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. The dissent similarly refers to the sign's message as "curious," "ambiguous," "nonsense," "ridiculous," "obscure," "silly," "quixotic," and "stupid." 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.

It should be pointed out that it's not often you get to read the phrase (even with brackets): "bong hits [are a good thing]" in a Supreme Court decision.

Justices Alito and Kennedy wrote, in a separate opinion that concurred with the decision, something which brings up the possibility of a different result if the banner had been advocating changing drug laws, instead of just advocating illegal drug use:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) 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."

But in dissent, Justices Stevens, Souter, and Ginsberg pull no punches in their language:

The Court rejects outright these twin foundations of Tinker because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.

They go on to refute the "bong hits [are a good thing]" reasoning, and take Frederick at his word that it was just a silly prank to get on TV:

To the extent the Court independently finds that "BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use -- in other words, that it can most reasonably be interpreted as such -- that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that (positing that the banner might mean, alternatively, "'[Take] bong hits,'" "'bong hits [are a good thing],'" or "'[we take] bong hits'"). Frederick's credible and uncontradicted explanation for the message -- he just wanted to get on television -- is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. But most importantly, it takes real imagination to read a "cryptic" message (the Court's characterization, not mine) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.

In other words, most students, even the dumb ones, know a prank when they see it. And if you start proscribing drug advocacy text in pranks, then who's to say what else you can proscribe in a prank?

The dissent goes on to actually address the core issue that the majority skirted: Is advocacy for changing drug laws "protected speech" for students?

Among other things, the Court's ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use ("[Students] may not be confined to the expression of those sentiments that are officially approved"). If Frederick's stupid reference to marijuana can in the Court's view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some "reasonable" observer censor and then punish them for promoting drugs.

The next paragraph shows that someone on the court did their homework, and recognized that advocating different marijuana laws might actually be relevant in Alaska:

The Court's opinion ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska. The State Supreme Court held in 1975 that Alaska's constitution protects the right of adults to possess less than four ounces of marijuana for personal use. In 1990, the voters of Alaska attempted to undo that decision by voting for a ballot initiative recriminalizing marijuana possession. At the time Frederick unfurled his banner, the constitutionality of that referendum had yet to be tested. It was subsequently struck down as unconstitutional. In the meantime, Alaska voters had approved a ballot measure decriminalizing the use of marijuana for medicinal purposes, and had rejected a much broader measure that would have decriminalized marijuana possession and granted amnesty to anyone convicted of marijuana-related crimes.

It then goes on to point out that banning messages advocating "substances that are illegal to minors" might have further repercussions than just marijuana advocacy:

Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all "substances that are illegal to minors." Given the tragic consequences of teenage alcohol consumption -- drinking causes far more fatal accidents than the misuse of marijuana -- the school district's interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner -- which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message -- the breathtaking sweep of its opinion suggests it would.

I would argue that it's not the silly example of a "WINE SiPS 4 JESUS" (you've just got to love how they kept the odd capitalization scheme intact), but rather whether any student could wear any clothing with a "Budweiser" or "Jaegermeister" ad on it. After all, by the court's reasoning, anything that advocates for substances illegal to minors is forbidden, therefore you can't wear a beer logo on a shirt in school.

Which the dissent does actually address, and forcefully. What is striking in this passage is the age of the Justices, since they have first-hand memories of Prohibition:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. 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.

That's a stunning thing for a Supreme Court Justice to say, in this day and age.

But back to "BONG HiTS 4 JESUS." Justice Breyer, who wrote his own opinion, points out the obvious conclusion that can be drawn from this case. Since the Supreme Court is trying to very narrowly define how it ruled in this case, they have tacitly given approval for such messages that do actually have a political content to them. His example was exactly what I had been thinking when I read the media stories about the decision (and he also preserves the odd capitalization -- these guys are sticklers for details!).

One concern is that, while the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. Illegal drugs, after all, are not the only illegal substances. What about encouraging the underage consumption of alcohol? Moreover, it is unclear how far the Court's rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick's banner had read "LEGALIZE BONG HiTS," he might be thought to receive protection from the majority's rule, which goes to speech "encouraging illegal drug use." But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

What he's saying, in essence, is that we need another test case. The Court ruled so narrowly in this case that it leaves a lot of questions. It's going to take some other gutsy kid (with vast legal resources at his disposal) to test this free speech limitation once again.

So there you have it, kids. If you want to (a) get on national television with a stunt, (b) have a message guaranteed to annoy people, and most importantly, (c) really enrage your school's principal -- then you've got to word the message carefully. So remember, don't say "BONG HiTS 4 JESUS," say instead:

LEGALIZE BONG HiTS 4 JESUS

 

[ I have edited the text of the decision only to remove superfluous legal reference numbers and footnote numbers. The text has not been edited in any other way.]

 

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