Judges rule: No bong hits 4 Jesus

The U.S. Supreme Court finally administered their opinion on the so-called “Bong Hits 4 Jesus”(legally known as Morse vs. Frederick) case yesterday, ruling in favor of the principal who suspended a student for refusing to put away a banner that read “Bong Hits 4 Jesus”.

The student, Joseph Frederick, along with some friends, had unfurled the banner across the street from his high school in Juneau, Alaska as the Olympic Torch Relay passed by in January, 2002. Principal Morse, assuming that the message on the banner was pro-drug (which is forbidden by Juneau school board policy), crossed the street and asked the students to take down the banner. All but Frederick complied, at which time Morse confiscated the banner and requested Frederick accompany her to her office, where she suspended him for ten days. Even though Frederick was officially off-campus at the time of the unfurling of the banner, witnessing the torch relay was an approved school activity, which binds him to the school board policy even if he is not on school grounds.

Frederick appealed the decision to the school superintendent, which stood by Principal Morse’s decision because of the assumption that the phrase “bong hits” meant marijuana and Frederick “was unwilling or unable” to express any other credible meaning to the phrase. Since, in their opinion, the banner only advocated the use of illegal drugs, and was not politically motivated (as to promote simply the legalization of marijuana), it was considered disruptive to the event.

Frederick then filed suit, alleging that the school had infringed upon his First Amendment rights. The District court ruled with the principal, stating that it was reasonable for her to believe that the banner promoted drug use and that “Morse had the authority to stop such messages at a school-sanctioned activity.”

However, the Ninth Circuit Court reversed the District decision, claiming that the “school punished Frederick without demonstrating that his speech gave rise to a risk of substantial disruption.” The court concluded that “Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity”.

So the Supreme Court was held to two questions: whether or not Frederick had a First Amendment right to display the banner, and if so, whether that right was “so clearly established that the principal may be held liable for damages”.

The Court admits that the message on the banner was cryptic. Frederick claimed that the banner was just nonsense, meant to attract television cameras. But Morse “thought the banner would be interpreted by those viewing it as promoting illegal drug use”. The ruling opinion of the Court agreed with Morse. Since Frederick cannot come up with any better explanation than the banner is “meaningless and funny”, the Court feels that the pro-drug interpretation gains more plausibility, since there seems to be no other interpretation aside from “nonsense”. Ultimately, the Court considered that the question “becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.”

Justice Breyer, who concurred in part and dissented in part, concluded that “This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.” He sees some concern in the ability of a school to restrict certain speech, including pro-drug speech, and when. He brings up the question of a student telling another student at lunch that a glaucoma patient should smoke marijuana, about deprecating commentary of an anti-drug film shown at school, and what if the banner had read “legalize bong hits” instead? “All of this is to say that, regardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason for us not to decide the issue unless we must.”

The dissenting opinions, shared by Stevens, Souter, and Ginsberg, speak to the motives of the student and principal. While the dissent agrees that the principal should not be held liable for pulling down the banner, the question is “may the school suppress student speech that was never intended to convince anyone to do anything?”

The dissent holds that the “nonsense banner” neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. By upholding the school’s decision to punish Frederick “for expressing a view with which it disagreed” the Court “does serious violence to the First Amendment”. There is a fine line when it comes to content and interpretation of a speaker’s point of view – and this is one issue that concerns the dissenting opinion. Also, punishing someone for advocating an illegal activity is only constitutional when the advocacy threatens the kind of harm the government seeks to avoid by banning such activity. When it comes to speech in school, the punishment is allowed if the advocacy works towards disruption of the school’s work. Ultimately, the dissent believes that there is no indication that Frederick’s banner willfully infringed upon anyone’s rights or disrupted the educational work of the school.

I think, however, that perhaps Breyer hit the nail on the head. Delving into the First Amendment aspect of the case seems to open a huge can of worms. Both the ruling opinion and the dissent refer to the same case when making their arguments (along with several other cases) and still come out on different sides of this case. I do agree with the dissent that the banner’s message is ambiguous enough, designed by Frederick to get the attention of television cameras and not to promote a drug message at his school. And if the principal’s intent was more to prevent embarrassment than stifle what she thought was a harmful drug message, then there seems to be a constitutional issue at stake here. What if the sign had read something else?

I realize that we cannot grant students in school the same protections as adults when it comes to speech issues, although I do not necessarily agree. But it is a very precarious line between what they are allowed to say and what is forbidden, and I think schools should be very careful with the speech they punish.