Freedom of Expression Takes a Bong Hit

Townhall.com ^ | June 27, 2007 | Debra J. Saunders

[Kaslin]

In its 1969 Tinker decision, the U.S. Supreme Court ruled that an Iowa public school could not expel students who wore black armbands to protest the Vietnam War because students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." On Monday, the Supreme Court issued a muddled ruling -- with four justices agreeing, one partially agreeing and three dissenting -- that restricts those free-speech rights, even outside the schoolhouse gate.

The story begins in January 2002. An Alaska high school student attending a Winter Olympics Torch Relay on a Juneau sidewalk unfurled a banner that read, "Bong Hits 4 Jesus." Joseph Frederick hoped that prank would land him on TV news.

Because the school had sanctioned the event and school staff supervised the event, Juneau-Douglas High School Principal Deborah Morse saw fit to confiscate the banner and suspend Frederick.

Frederick sued. A lower court ruled in Morse's favor. The Ninth U.S. Circuit Court of Appeals ruled in Frederick's favor. On Monday, the Supreme Court issued a ruling in the school's favor. As Chief Justice John Roberts wrote, when Morse saw the banner, it was "reasonable" for her "to conclude that the banner promoted illegal drug use -- in violation of school policy -- and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

So the court ruled that public schools have a right to censor opposition to the war on drugs, even as it has upheld the right of students to oppose military wars. Eric Sterling, a board member of Students for Sensible Drug Policy, described the decision in the nutshell: "They're saying there's free speech in the schools, but you can't advocate drug use."

I understand why the big bench would want to side with Morse -- although it's news to me that unfurling a banner on a public sidewalk is a principal's business, even if the school did sanction student attendance. Morse was trying to do her job -- even if she was heavy-handed. Frederick comes across as a disrespectful cut-up, who lacked the spine to admit the banner was a pro-marijuana message.

But Supreme Court rulings are not supposed to be adjudicated like a popularity contest. Roberts wrote a pragmatic results-oriented decision likely to please many parents. But to rule that schools can suppress ideas officials don't like -- well, who knows where that will end?

As Justice Stephen Breyer suggested in a concurring and dissenting opinion, the Morse decision "could in fact authorize further viewpoint-based restrictions." A principal might argue that the pro-bong banner hurts the school's educational mission, Breyer noted, but what if a student suggests that a glaucoma sufferer could relieve pain by smoking marijuana? That's not clear.

It would be more consistent, Justice Clarence Thomas wrote in a concurring opinion, to stipulate that "the Constitution does not afford students a right to free speech in public schools."

Thomas cited Justice Hugo Black's dissent on the 1969 Tinker armband decision: "Taxpayers send children to school on the premise that at their age they need to learn, not teach." (Frederick should contemplate that sentence.)

"I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't," Thomas wrote.

From the opposite spectrum, Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsberg, made the same point: "The Court's test invites stark viewpoint discrimination."

But also, "Carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment."

I especially appreciated that Stevens punctured Roberts' apparent belief that Frederick's prank, left unanswered, might lead to dangerous behavior. For Juneau-Douglas High School to argue that Frederick's banner undermined its education mission, Stevens wrote, the school must show "that Frederick's supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana."

And: "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."

In the war on drugs, common sense is the first casualty.

[Wolfie]

Let’s face it, as Americans, we don’t respect others’ rights if we disagree with their sentiments.

[SmoothTalker]

I have no problem with the ruling and i’m a libertarian. You need order in high schools. You can’t have punk kids “expressing” themselves in anyway they please. When it comes to adults in other settings I think full freedom of speech applies but school should be a privilege. Conduct including language (cursing at a teacher perhaps) and things like this banner should result in the student being disciplined.

[Dudoight]

I am with you!

[proxy_user]

Here is the key point:

“An Alaska high school student attending a Winter Olympics Torch Relay on a Juneau sidewalk....

His legal claim is that he was not in school, and therefore school authorities have no legal jurisdiction.

School authorities can consider speech content, but government officials regulating citizens cannot. That is what the whole dispute is about.

[wastoute]

The reason we have this “quandry” in which we have trouble resolving the seemed antagonism in respecting the rights of each party is because the parties are in an environment that the Constitution does not recognize, i.e., the “government school”. Of course one will have difficulty resolving these conundrums as they are artificially created by first creating the unConstitutional environment in the first place. The way to resolve the differences isn't arguing endless cases in various courts but to recognize the problem for what it is in the first instance.

[HoustonTech]

Let’s face it, as Americans, we don’t respect others’ rights if we disagree with their sentiments.

Let's face this too: many Libertarians don't respect others' rights if they disagree with another's sentiments either.

[Vanders9]

That’s a very brave and mature thing for you to say.

It shouldn’t be the case of course. It is a fascist thing to deny other peoples rights just because their opinions are different from your own. I hope and pray I never do such a thing. I also hope and pray that your statement is wrong, but I suspect you are very right.

[The Louiswu]

"I have no problem with the ruling and i’m a libertarian. You need order in high schools. You can’t have punk kids “expressing” themselves in anyway they please. When it comes to adults in other settings I think full freedom of speech applies but school should be a privilege. Conduct including language (cursing at a teacher perhaps) and things like this banner should result in the student being disciplined."

What a nasty little post - I am surprised you consider yourself a Libertarian

"You can’t have punk kids “expressing” themselves in anyway they please"
"I loved your use of the words punk kids, that is such a lousy slur, silly really, and since they can't express themselves anyway they please, can they just express themselves in the way YOU please?

Freedom of speech IS A RIGHT and not a privilege bestowed by the likes of you or the government.

So are you or the government going to say EXACTLY what this punk kid can say, when and where he can say it...No sir, that is not your place nor the governments.

[OCCASparky]

He was at a school-sponsored function, on school time. Much like a field trip, he is a representative of said institution, and expected to behave as a positive ambassador.

I think a significant difference between this and Tinker is the NON-VERBAL expression Tinker addresses versus the outright message given in this latest case. A subtle yet significant difference.

[theBuckwheat]

>>
I have no problem with the ruling and i’m a libertarian. You need order in high schools.
<<

We give government the job of educating our children. Not making sure they are educated mind you, but actually being able to levy taxes (via the threat of deadly force) and using that money to run what is clearly by now more of an indoctrination institution than one devoted to education.

If that was not such an insult to liberty and a blow to the essential knowledge and culture essential to good citizenship, we find that the supporting the institution that we spend so much on (almost 2x that of some private schools run by churches), that we find we must **suspend the very constitution** to continue this farce.

In these very “schools”, for I hesitate to call them that, we teach the plain text of the Bill of Rights, and then we punish the children who act on what we teach them. What lesson do they learn when they are so foolish as to believe the simple words, “Congress shall make no law”.

No wonder the left prefers to explain everything with “nuance”, and is repelled by those who see things in clear, black and white terms.

But we shouldn’t be surprised. When enough of us want to deny that slaves or the unborn are not human, or take away a right that “shall not be infringed”, we find it amazingly easy suspend the constitution there as well.

[hunter112]

You need order in high schools.

Yes, you do. But this was not in a high school. It was on a public street, and the only nexus with the educational system is that it was "school sanctioned".

What if the school "sanctions" attendance at a Hillary for President rally (as a sort of civics lesson, perhaps) and a student wears a "Stop Arkancide" shirt? Can the school then discipline the student under some sort of application of the law of libel and/or slander, since none of the Arkancide charges have been proven in court?

I'm all in favor of keeping order in schools, but by allowing a school to cast its influence anywhere it wants, without regard to whether the location is school property or not, we've allowed a governmental entity to dictate its potentially arbitrary standards no matter what its proper jurisdiction is. A very slippery slope, indeed.

[Clara Lou]

I’m glad someone understands. The same rules exists here in Texas. If a student attends a school-sponsored event, on campus or off, he/she is expected to abide by the school district’s policies. It’s in the student handbooks. [Students and parents sign a statement that they have read the handbook, and the statement goes in their file folder.] It’s part of the way a school district keeps it’s students from going to away games and wreaking total havoc in a different community.

People expect schools to control student behavior, then lash out when they do. This particular kid wasn’t exercising free speech. He was looking for attention at any cost. He got it.

[Clara Lou]

And the student knew about the legal status of that nexus and chose to do what he did anyway.

[DManA]

Geez Debby, calm down. I heard the kid say yesterday it was all a joke.

[live+let_live]

Here’s the skinny:

If you’re under 21 you don’t have any rights.

We’ve told you you have rights. But you really don’t. We only told you that because it makes us feel good.

We’ve given you some privileges. If you do something we don’t like we’ll stop you.

All this blather about the Bill of Rights is just so inconvenient, it might make us face our hypocrisy; oh, who am I kidding no it won’t.

[tpaine]

"I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't," Thomas wrote.

Sanity in an insane world - bump.