"Bong Hits 4 Jesus" sends pro-pot message, says Court

Unsurprisingly, the Supreme Court today held in Morse v. Fredrick [pdf] that the message "Bong Hits 4 Jesus," when written on a poster, advocates or promotes illegal drug use. When such a message is conveyed at a school or a school event, the school has the right to prohibit such advocacy and to discipline students who hold up such a banner.

I never had a lot of sympathy for this kid, Joseph Fredrick, and the Court's decision today illustrates why. Besides the basic argument that students have a First Amendment right to speak at school in support of illegal drug use, Fredrick made two much more ridiculous arguments. First, he claimed that this wasn't really a school function, so it was wrong to apply the code of student conduct to him. Second, he claimed that he wasn't really advocating drug use, anyway.

As Chief Justice Roberts said: "we agree with the superintendent that Frederick cannot 'stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.'" (slip op., p. 9). Frederick and his classmates were on a school-sponsored field trip. The band and cheerleaders performed. Teachers and administrators stood amidst the students to supervise them. They were directly across the street from the school itself. Only a bright, obnoxious, too-clever-by-half teenager (or his lawyers) would have the gall to try to say he wasn't "at school" and thus the normal rules don't apply.

Frederick's next too-clever-by-half claim was that he wasn't advocating drug use. No, he said, "the words were just nonsense meant to attract television cameras." (slip op., p. 9). Malarkey. Any kid over the age of 12 who knows the word "bong" at all knows exactly what it means. To deny an understanding of his own obvious message is to refuse to accept responsibility for his actions. Frederick claims he just held up the sign to try to get on TV. That may be true, but he knew exactly what those words meant and why it might get him on TV. To call them "nonsense words" is to rationalize.

I also suspect his motives because he, alone among his banner co-conspirators, refused to take down the banner after the principal ordered him to. I knew some rebellious kids in my own school days. If they were just goofing off to get on TV, they would have pulled the banner down the second they were about to get in trouble for it. Not a moment before mind you, but the once they were told to by a teacher or principal, they would have been scared into compliance. Refusal to take down the banner suggests to me that he intended to make a point and had planned to defy the principal ahead of time.

The Court held that a school may prohibit the advocacy of illegal acts while the children are in their care. The vote was 5-4 for that position but 6-3 for the result (Justice Breyer dissented from the reasoning, preferring to resolve the case through qualified immunity). The meat of the Court's holding is here:

The 'special characteristics of the school environment,' Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse reflected in the policies of Congress and myriad school boards, including JDHS, allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of 'undifferentiated fear or apprehension of disturbance' or 'a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.' The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy extends well beyond an abstract desire to avoid controversy. (slip op., p. 17, internal citations omitted)

As Justice Alito concurred to highlight, the Court refused to justify Frederick's suspension on the grounds that the banner was "offensive." It was only the promotion of dangerous drug abuse which justified the school's curtailment of Frederick's speech:

Petitioners urge us to adopt the broader rule that Frederick's speech is proscribable because it is plainly 'offensive' as that term is used in Fraser. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of 'offensive.' After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick's speech was offensive, but that it was reasonably viewed as promoting illegal drug use. (slip op., p. 17, internal citations omitted)

Presumably, then, Frederick would have been within his rights to hold up a "God hates fags" sign.

My own opinion is summed up by Justice Thomas (slip op., p. 19), who states his belief that Tinker was wrongly decided. It was Tinker which first applied the First Amendment almost, but not quite, whole-hog to schools. I agree with Justice Thomas that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." I'll leave the history lessons to Justice Thomas, but I'd also like to discuss the policy grounds.

The purpose of schools is to educate the students. At some point, education must teach children the difference between some truths and some falsehoods, must teach the children the difference between facts that are correct and facts that are wrong. At a minimum, a student cannot have a free speech right to insist that 2+2=5. It is the proper role of the school to correct him, teach him that is wrong, by insisting that when given the question "what is 2+2", he writes down "4" rather than "3" or "5."

That's not true outside of the realm of the classroom. I have a free speech right to say untrue things. I can argue that 2+2=5 to my heart's content, print it on banners, wear it on a t-shirt, take out nutty little ads about the conspiracy against 2+2=5 in the back of Popular Science... but not as a student in school. A school that is prohibited from punishing its students (say, by giving bad grades) for speaking untruths would be failing its students most profoundly.

So we see that there is necessarily a different relationship between schools and the adult world when it comes to the First Amendment. The question then becomes what rules should apply to the school, what speech rights children maintain despite the unique charge we give to our schools.

The question immediately becomes more difficult when we move out of the hard sciences and math to history and social studies. In the U.S., I have the right to deny the Holocaust (I would never do that, but I have the right). But if there's a question about the Holocaust on a true/false test, may a school mark the answer wrong if the student chooses "false", and thus denies the Holocaust occurred?

I think most of this should be left to the sound judgment of the schools, not the courts. A school should be able to punish a kid for promoting drug use. It's wrong, it's against the message the schools quite properly teach our children, and so the school should be able to prohibit its students, and school events or on school grounds, from promoting that message. Likewise, "God hates fags" or even "I hate fags" (to remove any Establishment issue) is a rude, offensive message. A school should be free to help further the education of its charges by teaching them (and teaching sometimes involves punishment for those who refuse to learn the lesson) why such a message is inappropriate.

The preceding comes with the caveat that I think from a policy standpoint it should apply most strongly to elementary schools, begin to be somewhat relaxed in middle schools, and relaxed more in high schools (consistent with their slowly growing maturity). Universities, I think, deal with legal adults and thus the First Amendment applies in full force, except to the extent actually necessary to allow professors to grade papers.