We've come a long way since "Fuck the Draft." The history of free speech in America features a long proud march of embattled speakers pushing back against government authority. Whereas today's free-speech heroes pretty much just want to be zany enough for YouTube.
In the old days, whether they were claiming that government workers were "God damned racketeers" (in Chaplinsky v. New Hampshire); protesting the war in Vietnam with armbands ( Tinker v. Des Moines) or foul words ( Cohen v. California); declining to "live free or die" ( Wooley v. Maynard) or asserting the controversial right to burn a flag ( Texas v. Johnson) these folks had the courage of their convictions. And because of John and Mary Beth Tinker—who wore black armbands to school to protest the war—the Supreme Court once agreed that student free-speech rights don't disappear at the schoolhouse gate. Today's court isn't so certain.
Alaska high-school student Joseph Frederick hoisted his 14-foot "Bong hits 4 Jesus" banner to get on TV. He knew it was a meaningless phrase. He'd seen it on a snowboard. (Nine out of 10 potheads I polled for this piece confirmed these words are no more meaningful when stoned.) But Frederick wanted to annoy school administrators, and he wanted media attention, and as we discovered today, he chose well on both fronts. He was suspended for 10 days. And we are out in droves to cover his case. The words "Bong Hits 4 Jesus" do grab headlines, and even the justices seem to be giggling and getting the munchies as they speak the words this morning.
Frederick held up his banner for the TV cameras, just opposite school property during a local event celebrating the Olympic torch relay in 2002. The principal seized the sign and suspended him. He sued, and while he lost in the trial court, he won at the 9th Circuit Court of appeals, which went so far as to say that the principal could owe him money damages. The court today must decide whether Frederick's banner is more like Tinker's black armband or a disruptive call to lawless drug use.
Oral argument in Morse v. Frederick does reveal some of the worst aspects of sharing a bong. The first being paranoia. Because according to Kenneth Starr, former righteous independent counsel—now tanned Californian law-school dean—the fate of the drug wars depends upon the unconditional school message that drugs are bad, yet schools cannot enforce that message because smartass kids keep undermining them. Starr's alternative (and if you ask me, far more paranoia-inducing) universe: Schools get limitless discretion to craft broad "educational missions" and are then free to squelch any student speech that "undermines" them.
The justices appear to loathe each alternative about equally. At some point, Justice Stephen Breyer groans that a ruling for the students would encourage them to be "testing limits all over the place in the high schools," whereas a ruling for the schools would certainly end up limiting lots of speech.
Starr opens with the statement that "the glorification of the drug culture" is at stake here. He claims that schools, even under the broad standard laid out in the armband case, can't necessarily limit political protest but may bar "disruptive speech." This sets the court's hippies off. Justice Anthony Kennedy: "There's no classroom here." Justice David Souter: "What did it disrupt on the sidewalk?"
Starr insists that "Bong Hits 4 Jesus" promotes drugs. Justice Ruth Bader Ginsburg asks whether a sign that said "Bong Stinks for Jesus" would be more permissible. Souter asks whether a simple sign reading "Change the Marijuana Laws" would also be "disruptive." Starr says that interpreting the meaning of the sign must be left to the "frontline message interpreter," in this case, the principal. Then Starr says schools are charged with inculcating "habits and manners of civility" and "values of citizenship." Yes, sir. In the first six minutes of oral argument Starr has posited, without irony, a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship.
Chief Justice John Roberts wonders why students should be allowed to set the classroom agenda when teachers are trying to teach Shakespeare and Pythagoras. Starr says that in the Vietnam protest case, the school tried to "cast a pall of orthodoxy" by banning student protest. Whereas, he suggests—again without a whiff of irony—that students should be able to offer no dissenting opinions here because drugs, alcohol, and tobacco are bad.
Breyer (who seems to be having one of those "my hand looks sooooo big" trips) thinks maybe a better rule is one that bans any and all 15-foot banners on field trips.
Deputy Solicitor General Edwin Kneedler argues the school's side of the case on behalf of the Bush administration. Justice Samuel Alito finds it "very, very disturbing" that schools can define their "educational missions so broadly" that they can limit important student speech. He's worried about the evangelical groups, who sit, improbably, at the stoners' table in the cafeteria today. These groups worry, not unreasonably, that the targets of most school suppression of politically incorrect speech are religious students sporting pro-Jesus or anti-gay T-shirts.
Souter again insists that the "bong hits" statement itself should be scrutinized for its meaning. The way Cheech and Chong might strive to seek meaning in a Hanson song. * But Kneedler responds that the only person who can determine the banner's meaning is the educator who banned it. "But won't the principal always prevail?" asks Justice John Paul Stevens. Um, yes. That seems to be the point.
By the time Douglas Mertz gets up to argue on the students' side, it looks like he's already won, if for no other reason than the justices appear horrified by the limitless power the schools are asserting. But somehow he manages to trigger a second, more terrifying episode of paranoia in them. "This is a case about free speech, not drugs," he opens, but Roberts clocks him with: "This is a case about money. Your client wants money from the principal for her actions." Then Kennedy jumps in to ask what kind of kid would go after "a teacher who has devoted her life to this school, and you're seeking damages from her for a sophomoric sign."
Scalia begins to bogart the argument at this point and asks whether a school that held an anti-drug rally in the gym would have to permit a student to wear a button that says, "Smoke pot. It's fun." Mertz repeats that student protest can't be "disruptive." Scalia retorts that "undermining what the school is trying to teach" is pretty disruptive. Kennedy asks about a student sporting a button that says, "Rape is fun." Mertz says students may not advocate violent crime. This sets Scalia off again. "So, they can only advocate non-violent crime?" he snorts. "Like, 'Extortion is profitable?' " He adds that "this is a very, very, with all due respect, ridiculous line."
Now they all start to bicker about disputed questions of fact. Like whether it matters that the students were given time off to watch the Olympic torch, or that Frederick still wants the record of his suspension expunged, or that Frederick played hooky so that he could hold up his banner, yet specifically went to a spot directly next to the school to join his classmates (thus reaping the benefits of skipping school while still attending school for the purposes of annoying the school administrators). Ginsburg's eyes are getting redder by the minute. Ken Starr is now eating everything in sight.
It's hard to imagine that the students of America will be better served by giving their educators the ultimate gateway drug: the apparently limitless power to define their "educational mission" in any way they please in order to suppress any and all student speech that doesn't conform. That kind of power strikes me as more addictive, and even more dangerous, than any drug.