Bong Hits 4 Jesus: Debriefing

Yesterday, the U S Supreme Court crafted a narrow ruling in the "Bong Hits 4 Jesus" case, Morse v Fredrick, that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity when that speech may promote the use of illegal substances. Today, the lawyers are analyzing what that means with respect to free speech.

Here's what happened:

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, student Joseph Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

But Frederick never reported to school. He said his car was stuck in snow.

He arrived outside the school in time for the torch entourage. He stayed on the sidewalk across the street from Juneau-Douglas High, and with the help of several other students, held up the banner just as the torch passed, in the hope of getting on the local TV news.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

Juneau principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating drug use. But it probably did not help his case with the court, that he later pled guilty to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Texas.

This from PBS's NewsHour.

Experts Analyze Supreme Court Free Speech Rulings

JUDY WOODRUFF: What signals does the court send with today's decisions? For that, we turn to: Walter Dellinger, former acting solicitor general under President Clinton, and now a law professor at Duke University; and Richard Garnett, associate professor at Notre Dame Law School, where he teaches on First Amendment issues.

Richard Garnett, to you, first, three decisions, three split decisions, 5-4. Is there a common thread here as it relates to the First Amendment? Are we learning something about this court and the First Amendment today?

Richard Garnett: Notre Dame Law School

"...you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism."

RICHARD GARNETT, Notre Dame Law School: You know, one thread that seems to hold these cases together is that, in all three, you had an older decision that the courts have had the option of either rejecting or reversing entirely or trying to live with. And in several of the cases, you saw some of the justices on the conservative side saying, "Look, we should take this farther. The cases you're asking us to work with, they were wrongly decided. Let's scratch them and move on."

But in all of these cases, the court decided not to do that. And instead you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism.

JUDY WOODRUFF: Is that what you're seeing, Walter Dellinger, incrementalism?

Walter Dellinger: Duke University School of Law
"In the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use."

JUDY WOODRUFF: Well, we hear Professor Garnett saying, though, they're doing this along pretty narrow definitions of the law.

WALTER DELLINGER: Well, that was true at least in one of the cases today, the school case. One of the things we learned about the First Amendment today was that the court -- it's a little more differential [sic] to free speech rights of corporations than it is to public school students in one important respect...

...And yet in the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use.

But what does the phrase "Bong Hits 4 Jesus" mean? Nobody knows. The kid may have just wanted to get on television.

But in that case, the court went the other way and assumed that this was an advocacy of illegal drug use. I don't think that an earlier court in Tinker would have thought this unprotected speech by the student.

~

This from the Los Angeles Times: Justices let schools ban pro-drug signs.
High court rules, 5-4, that administrators have the right to discipline students for promoting illegal activities.

This from Education Week: Supreme Court Backs Discipline of Student for Drug-Related Banner.

And this: U.S. Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case.

This from BBC News: US student loses free speech case

This from the Christian Science Monitor: Court restricts student expression.
The Supreme Court ruled Monday that school officials retain discretion to censor student speech that they believe may encourage illegal drug use.

This from Breitbart: Top US court rules against 'Bong Hits 4 Jesus.'

This from CNN: 'Bong Hits 4 Jesus' case limits student rights.

This from the Chicago Tribune: Court Limits Student Free-Speech Rights.

This from MSNBC: Supreme Court limits student speech.
In 'Bong Hits 4 Jesus' case, Roberts says advocacy of drug use can be curbed.