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Bong Hits for Jesus Case Might Not Be So Bad

Ok, that is a little optimistic. The case does display some disturbing principles and some that make me a little hopeful.

The majority seemed to wish to dispense with the whole “conservative” philosophy of judicial restraint. The case could have been decided on much narrower grounds, leaving the Constitution fully intact. In fact, they could likely have had a 9-0 decision, had the majority not thrown an anti-drug temper tantrum.

There are plenty of other commentaries on the case out there, so I won’t bother to spew out too much about it. Nevertheless, this case is a sad sign that you idiots who declared a “war on drugs” already killed the Fourth, Fifth, and Sixth Amendments as collateral damage. Now, the First Amendment took a shrapnel wound too – while it was just innocently standing there protecting our free speech rights.

I do agree that if a kid is disrupting class or a school event, then he should be disciplined. However, the majority’s opinion makes us all less free. Congratulations Justice Roberts, you have succeeded where Osama Bin Laden failed.

To hold that Joseph Frederick’s banner was “promoting illegal drug use” is simply unsupportable by any interpretation of the facts. The court wanted to send an anti-drug message, and roll back free speech rights. Mission accomplished.

Clarence Thomas concurred, and reading his opinion, I wondered if the banner should have said “bong hits for Clarence Thomas.” Thomas essentially held that students have no free speech rights. His opinion really reminds me of a grandpa saying “in my day, they’d have beaten you with a switch for mouthing off.”

Thomas’ bizzarre essay relies upon:

  1. An 1837 North Carolina case that supported a school’s right “to control stubbornness, to quicken diligence and to reform bad habits.”
  2. An 1886 Maine decision that says that schools must “quicken the slothful, spur the indolent and restrain the impetuous.”
  3. An 1859 Vermont decision that calls for schools to promote “decency and decorum.”
  4. An 1885 Missouri case that supported a rule that “forbade the use of profane language.”
  5. an 1888 Indiana holding that allowed schools to seek “good deportment.”
  6. An 1843 schoolmaster’s manual that called for “a core of common values” and the “power of self-control.

Okay, I see where Clarence is going with this. But, seriously, did he smoke himself some reefer before writing this? In each of those cases, or at least the ones from the South, I’m sure that the authoring court would have held that speech calling for racial equality would have been “uppity” and properly prohibited. Thomas wants to overrult Tinker. I’m glad he is alone in that regard.

I was disappointed by Kennedy, but pleasantly surprised by Alito. I think that the two of them could have grown a pair and protected the First Amendment, but at least they did seem to signal “ye shall pass no further.” Kennedy and Alito opined that the majority opinion was okay because:

(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.

In other words, under these facts they concurred, but under other facts they might not have. They seem to have drawn a line in the sand. Alito made it clear that the only school speech that he would allow to be suppressed is speech that actually threatens “the physical safety of students.” I agree with him there. I think that he is a bit off when saying that promotion of drug use fits that definition. Nevertheless, if the Alito-Kennedy line holds, I think that might be a fair enough compromise. I would like to buy him a shot of Grappa for writing that this opinion “does not endorse any further extensions” of speech restrictions.

Lets see how long that line holds.

John Paul Stevens’ dissent, joined by Souter and Ginsburg was inspirational, and hearkened back to a day when Brennan was still alive (sigh).

the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” ante, at 1, cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.

The dissenters also challenged the finding that the banner promoted illegal 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.

Too bad that some judges shed their brains at the courthouse steps….

So…. why the title of this post?

The Supreme Court, a few days later, refused to grant certiorari on Guiles v. Marineau,461 F.3d 320 (2d Cir 2006). In that case, a student was disciplined for wearing a t-shirt with images of cocaine and a martini glass calling President Bush a lying drunk driver, cocaine user, and the “chicken-hawk-in-chief” who was engaged in a “world domination tour.” The school freaked out and disciplined young Mr. Guiles because his t-shirt violated the school dress code, which prohibits clothing that promotes the use of drugs or alcohol.

And people wonder why public schools have such a bad rep.

Okay, maybe an imbecile would think that “Bong Hits for Jesus” was promoting drug use — but Mr. Guiles’ t-shirt seems to, if anything, to ridicule drug use. Of course, it also ridicules Mr. Bush — which makes it core political speech. The D. of Vermont disagreed, but the 2d Circuit overturned that decision.

It appears that by rejecting the appeal, the Supreme Court did respect Alito’s line in the sand. Nevertheless, the Court would have done much better to have accepted both cases and issued a ruling on both. I liked how they did that in the Ten Commandments cases. Some call those cases “inconsistent,” but I thought that the Court brilliantly answered the question of “where should we draw the line?” (If some hillbilly yahoo jackass, and a government actor, puts up the ten commandments to promote monotheistic religion, that isn’t allowed — but if it happens to be there as a historical relic, then it is okay to leave it there).

Unfortunately, SCOTUS has left the school speech line somewhat blurred by refusing the petition in Guiles. Unless you live in Vermont, New York, or Connecticut, you really don’t know where the line is. Lets hope that by the time this issue is resolved, that Alito’s rule can carry the day.

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