Ruling "Bong Hits" Out of Bounds

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Clay Good / ZUMA

High school students in Juneau, Alaska.

You can almost hear the egg sizzling in the skillet (your brain on drugs, remember?) while reading Chief Justice John Roberts' opinion undermining student speech rights. The ruling reads like nothing so much as a goofy TV ad denouncing pot, but in the end, Roberts gets it about right when he says the case of the kid suspended for unfurling a "Bong Hits 4 Jesus" banner across from school "hardly justifies sounding the First Amendment bugle."

Monday's 5-to-4 ruling is the latest to limit the right of students to speak freely since the Court proclaimed in 1969 that they do not "shed their constitutional rights to freedom of speech ... at the schoolhouse gate." The court says schools may punish "student speech celebrating drug use" without violating the Constitution, just as they can prohibit "lewd or vulgar" language or speech "sponsored" by the school in, for example, a student newspaper, two First Amendment exceptions that the justices created with rulings in the late 1980s.

Writing for the court, Roberts stresses that "drug abuse can cause severe and permanent damage to the health and well-being of young people" and so "deterring drug use by school children" is justification enough for silencing a student. But as even the chief acknowledges, it is far from clear whether Bong Hits 4 Jesus is a pro-drug message or just a bunch of nonsense, an ambiguity that puts the court's reasoning on shaky ground.

The case started in 2002, when the Juneau-Douglas High School in Alaska let students cross the street to watch the Olympic torch pass on its way to Salt Lake City. As TV cameras rolled, senior Joseph Frederick and several friends unfurled the infamous banner, thinking it was, according to Frederick, "meaningless and funny," just a way "to get on television." But the school principal was not amused, and when Frederick refused to take the banner down, she suspended him for 10 days. Frederick sued the principal and school for violation of his free speech and won in the lower federal courts, but the Supreme Court accepted the case on appeal.

The principal argued that she thought the message was about pot smoking and that it broke school rules against promoting illegal drugs, and Roberts agrees with her. He attempts a lawyerly gloss on the whole discussion by launching into an exegesis of the possible meanings of Bong Hits 4 Jesus, explaining that it "could be interpreted as an imperative" (DO bong hits), a celebration of drug use (bong hits are GOOD) or "gibberish" (TOO MANY bong hits). In any event, he concludes that it must have some meaning, and since the one the principal gave it is as good as any, let her fight the good fight against potheads, with the court's blessing.

In a concurring opinion, Justice Clarence Thomas says he is all for this, but he comes at the issue from left field or, more accurately, from somewhere in the 18th century. Thomas plays the crotchety schoolmarm, proclaiming that students should not have any free-speech rights in school. In the good old days, he writes, "teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order." Spare the rod, he concludes, and spoil that little dickens Joseph Frederick.

Meanwhile, in another concurring opinion, Justice Samuel Alito, joined by Justice Anthony Kennedy, sides with Roberts, but they fret about anyone construing his opinion too broadly. It's all right, they say, for schools to crack down on speech about drugs, because drugs can be a real threat to student safety. But in their view, that's about as extreme a restriction as the First Amendment allows. Roberts' opinion "provides no support," they say, "for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."

But the problem, says Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg in dissent, is that the Roberts opinion not only provides support for such a restriction, it invents "out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs." Stevens is fine with a rule that prohibits students from promoting illegal drugs. But no matter what the principal argued in this case, the bong-hits banner conveyed "nonsense," speech "that was never meant to persuade anyone to do anything."

In one of the better lines from Monday's opinions, Stevens explains that most students knew the bong-hits message had no meaning, because most of them "do not shed their brains at the schoolhouse gate." And so to allow schools to ban speech that merely alludes to drugs might, he says, squelch "a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana," a topic at the heart of political debate. (Justice Stephen Breyer, often in accord with the case's dissenters, writes separately (and alone) to say the court should just declare that the law gives the principal immunity from getting sued and punt the case on procedural grounds. Good one, Stephen.)

In the end, though, Roberts seems to have best kept his eye on the bigger picture. There's a lot more going on in this case than whether the law should allow kids at school to talk about sucking on a bong, and the chief puts his finger on it when he responds to Stevens' dissent by explaining that political speech is just not an issue here.

The banner was a joke, a prank that embarrassed the school and cost Frederick a few days of forced vacation. It did not raise politically weighty issues like drug policy or whether students should wear black armbands to school in protest of the Vietnam War, the issue in Tinker v. Des Moines Independent Community School District, the 1969 case establishing students' right to free speech. And making a Supreme Court case out of it was all but frivolous, a move emblematic of how students and their parents are rushing to court to vent their smallest grievances with schools.

While an annual average of 29 student-discipline cases made their way to federal appeals courts through the early 1990s, the figure has risen to as many as 94 in recent years, according to Richard Arum, a sociology and education professor at New York University. The cases typically involve issues like school attire and online insults, and the sheer volume of litigation has led teachers to forgo keeping order in school just to avoid lawsuits, according to Arum.

We don't know whether the court took these factors into account in the Bong Hits opinion, but Roberts makes the point clearly enough. "School principals have a difficult job, and a vitally important one," he writes. "When Frederick suddenly and unexpectedly unfurled his banner, Morse (the principal) had to decide to act — or not to act — on the spot." She acted, of course, and for the good of the schools and students, maybe that wasn't such a bad thing.