Tuesday, June 26, 2007

Bong Hits for the First Ammendment

On June 24, 2002, Joseph Frederick was one among several students who unfurled a banner reading "Bong Hits 4 Jesus" across the street from Juneau-Douglas High School in Alaska. They were among a group of students gathered to watch the Olympic torch pass by that morning. The Principal of the High School, Deborah Morse, ran across the street (off school property), confiscated the sign, and suspended Frederick for 10 days. Frederick sued for violations of his First Amendment rights. The case wound its way through he system to the US Supreme court.

Yesterday, the Supreme Court ruled in Morse vs. Frederick in favor of Morse, the school principal, in a 5-4 decision along normal lines, reversing the lower court's decision.

Now, I feel a little strange calling attention to this case in light of everything else going on in the world, but we're talking about a Supreme Court decision concerning one of the most fundamental rights enshrined in the US Constitution. A right whose foundation is being dismantled before our eyes by the current executive branch and, it appears, the Supreme Court itself.

And it's not so much the decision, per se, that bothers me. It's the spectacular apathy among American citizens about a ruling that some legal scholars have called "the most important free-speech case in 20 years." Secondly, it's the fact that we now have a majority in the Supreme Court whose loyalty lies somewhere other than protecting the basic Constitutional rights of the fore mentioned apathetic populous. Third, it's a funny case. How often does that happen? Frederick is either a great champion of free-speech rights in America, or the most successful high-school prankster in the history of the world, or both.

Again, the details in this case are a bit fuzzy, so I don't have a very strong opinion about the ruling. The majority opinion hinges on the assumption that the gathering across from the school was a "school- sanctioned event". The validity of this assumption is disputed. It sounds to me like this was more of an informal gathering of school students. One piece of evidence supporting this is that Frederick was officially "Truant" at the time the event occurred. Frankly, I don't understand why this wasn't the central question: was it a school event or wasn't it? The majority opinion seems to ignore this question and is basically as follows: "Schools have a right to limit speech that seems, to a reasonable person, to encourage illegal drug use." Remarkably, the majority went on to say that if the banner contained serious political speech such as "Legalize Marijuana", it would have been protected.

The minority argued that "Bong Hits 4 Jesus" is not a serious endorsement of illegal drug use, but a joke, and that no student is more likely to use drugs as a result of seeing the banner.

I might argue that "Bong Hits 4 Jesus" just might constitute serious speech in a satirical sense. Satire is, after all, recognized to be a serious form of political speech in America today. Admittedly, were this serious commentary, it would be quite cryptic. But I think there is indeed a very thin line between serious political commentary and nonsense. Who decides?

Also, when I heard about the ruling, the thought occurred to me that the burden should fall on the Limiter of speech (in this case, the school) to prove that the speech is harmful. That is, they need to prove that this particular drug, marijuana, is harmful, and not just illegal drugs in general, in order to demonstrate a compelling need to limit speech.

I certainly didn't think that any of the Justices would bring that up, but I was wrong. Justice Stevens: "Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting--however inarticulately--that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."

Also, from the 9th circuit court's written opinion, "The issue of "illegal" drug use is a little complicated under Alaska law. Alaska has an express constitutional right to privacy that the federal constitution does not have. The Alaska Supreme Court has held unanimously that the state had the burden of justifying its statute prohibiting marijuana use, and "no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown." ... Frederick was an adult citizen of Alaska, not a minor, at the time he displayed the sign."

Hopefully that means I wasn't too off-base.

But again, I think the main question in this case is whether or not this was a school event. The 9th Circuit court, which ruled in favor of Frederick, wrote "Frederick's banner... was displayed outside the classroom, across the street from the school, during a non-curricular activity that was only partially supervised by school officials. It most certainly did not interfere with the school's basic educational mission. "

The last thing I'd like to point out about this case is that it represented yet another opportunity for Justice Clarence "The Government derives its right to rule from God" Thomas to demonstrate his breath-taking idiocy and total hostility toward the First amendment. Basically, Thomas said that students don't have any free speech rights, ever, and that this ruling is good only to the extent that it takes another step toward further limiting free-speech rights for students. This is the same dude who Universally opposes racial quotas in Colleges and Affirmative Action, even though he has personally benefited from both. He certainly couldn't have made it to the Supreme Court on his own merits.


Unknown said...

We knew we were going to have a conservative activist court, we just did not know how bad it was going to be. Now, we know. Three horrible decisions yesterday. I understand that persons under the age of 18 do not have the same constitutional protections as adults, but this banner is speech. It is political speech. And it posed no clear and present danger to anyone. That should be the standard as Holmes wrote in his famous dissent.

The same day that Frederick loses his case, the court rules that corporations, unions, and lobbyists have protections under the first amendment to spend as much money as they want on political campaigns. These guys are supposed to be strict constructionists. the legislature passed the McCain-Feingold bill. The president signed it and previous court decisions upheld it. There was absolutely no constitutional basis for this ruling yesterday. It is nothing more that a big fuck you to individual speech while corporations will have plenty of power to bend political will.

And finally, to add insult to injury, the court's professed devotion to the First Amendment did not extend to allowing taxpayers to challenge White House aid to faith-based organizations as a violation of church-state separation. Scalito found a really bizarre extra constitutional distinction between executive branch and legislative functions to allow the Bushies to give taxpayer money to faith-based organizations.

All of the justices in the majority opinions of these cases went before congress and said they were strict constructionists who would exercise restraint with interpretation and rely heavily on stare decisis when making decisions. I guess precedent just is not relevant when the first amendment is involved.

Trey said...

Yeah, to me, it seems pretty obvious that corporate finance of politics should be severely limited on the grounds that corporations have only one motive: profit. By definition, they have no interest in social justice, environmental responsibility, or the common good except to the extent that the promotion of such leads to greater profit.

The Supreme Court basically said that corporations have the same rights as individual citizens. But a corporation is like a really bad, self-serving, greedy, citizen.

I don't understand the interest in protecting the rights of corporations over those of real citizens.