Well, I had a nice, detailed post on on the "Bong hits 4 Jesus" case -- boringly aka Morse v. Frederick -- but my computer ate it last night. It got the munchies. I had all the lines from the Justices that cracked me up, like when Justice Ginsburg tried to make a hypothetical out of the notion -- who knows why it popped into her head? -- what if instead of "Bong hits 4 Jesus," the banner had said "Bong stinks for Jesus." Now, I assure you I'm not high. For one thing, it's 6 a.m. For another, I haven't been anywhere near marijuana since I sat next to those guys at a Kinks concert in 1973. Also, it's illegal. And unlike some people, for me, the fact that something is illegal is enough to keep me from doing it.
Now, take down that banner! Don't you see the Olympic torch is coming through town? It's a torch to ignite all the hopes and aspirations and lofty, sporty thoughts of mankind. Not a cue to light up illicit botanicals.
Since I lost the heart to reconstruct my hilarious post from scratch, let me link to Dahlia Litwick's write-up and offer a little commentary:
... [Joseph] 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....I love that Ken Starr is the one embodying the principal's censoriousness. Like a perfectly phrased 15-foot banner, he's the perfectly chosen purveyor of high school moral standards.
[A]ccording 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...: Schools get limitless discretion to craft broad "educational missions" and are then free to squelch any student speech that "undermines" them.I love the way that formulation is so well-framed as a general principle yet so utterly disturbing. To be fair, Starr doesn't argue for "limitless discretion." He argues for deference to the reasonable decision of the school official.
Souter ... 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 Hansen 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.Souter had a really good point, actually. Kneedler was making a distinction between speech that supports illegal drug use and speech that advocates legalizing marijuana. Souter posited that "Bong hits 4 Jesus" could be construed as an argument for legalization, through the literary device of ridicule.
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 [sic] 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."I was surprised to see Kennedy blatantly show sympathy for one party over the other like that. And Roberts's point seemed strange. Cases about things that happened in the past are nearly always, in some way, "about money." Why bring it up here? Because it's horrible that a poor educator should ever have to pay?
Later, however, Roberts nails it. The case is about whether there was clear law that the principal should have known, which is required before damages are available against a government official who has what is called "qualified immunity":
Can we get back to what the case is about? You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I've got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it?...And so it should be perfectly clear to her exactly what she could and couldn't do.The opportunity for humor is ripe and Scalia snags it:
MR. MERTZ: Yes.
As it is to us, right?Souter explains the joke:
I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior.One of the finest points in this case is what it means for a message to be "disruptive" (a key concept in Tinker). This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It's quite different from disruptive speech during a lesson. Scalia offered a distinction between "disruptive" and "undermining." The school's real objection is that a pro-drug message undermines the message it endorses. That is, they don't want disagreement and debate. They still convey their anti-drug message all the time, and this student isn't interrupting them or even distracting anyone from hearing that message. He's just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.
But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.