A nice thing about blogging is that friends and strangers send you email suggestions. Some of the ones from strangers—like “Hey idiot, why don’t you check out JesusNeedsYourCash.com” or “I sincerely pray that you find the loving God before your hateful ass is doomed to eternal hell”—are easily dismissable. Others, like solicitations from Web sites that sell, say, condoms for skeptics or atheist-themed cupcakes, are also no problem to brush aside.
The recommendations from friends, however, are not so easily ignored. Some of my classier correspondents deserve to be acknowledged. That’s why I’m finally going to write about Morse v. Frederick, or, as most of us know it, the “Bong Hits 4 Jesus” affair, which was argued before the Supreme Court last Monday. I’ve weaseled out of this one long enough.
And why? Because I’ve got a problem. Which right is more important: (1) Freedom of Speech or (2) Freedom from the Establishment of Religion? Both these rights are guaranteed in the First Amendment. On rare occasions, though, they seem to come into conflict. The Bong Hits case, itself, has nothing to do with religion, despite Jeezy’s name. But the potential ramifications of the forthcoming decision may well be a First Amendment schizophrenic episode waiting to happen.
If you’ve read my posts with even the attention of a stoner, you know that I’m both a free speech absolutist and a staunch opponent of religion rearing its ugly head in the governmental arena.
Because of these two strongly held views, I still find myself scratching my head over the 1995 case of Rosenberger v. University of Virginia. The school had set aside a fund to subsidize the printing of student publications. Rosenberger asked for $5800 to help pay for “Wide Awake: A Christian Perspective at the University of Virginia.” The school said, “Hey, wait a minute. We’re not going to use what are essentially tax dollars to help you preach religion; that’s an unconstitutional establishment.” Rosenberger countered by pointing out that his publication was being unconstitutionally singled out, due solely to its content, from a general program; what happened to his free speech guarantee? The 5-4 Supreme Court majority agreed with him. My gut tells me that I oppose this ruling, but I can’t figure out why. Free speech, after all, is free speech.
Which brings me to last Monday. Here, greatly simplified, are the facts of the BH4J situation: Joseph Frederick was a senior at Juneau-Douglas high school. He failed to show up for classes at the start of the educational day. Later that morning, the students were let out of the building to watch the Olympic torch being carried by. Some cheerleaders and band members from the school had been appointed tasks to perfrom during the rally, and a few students even got to bear the sacred object. The school system claimed to be sponsoring the event, although those students released from classes were not required to attend. Nor was the hoo-ha in the street limited to students; there were plenty of non-students watching, cavorting, and throwing snowballs in the general moronic celebration.
Frederick showed up, still not having officially checked in at school that day. He and some other individuals — who may or may not have been students — held up a 14-foot-long banner that carried the phrase, “BONG HITS 4 JESUS.” This was an attempt, according to Frederick, to make it onto the TV news that night with a meaningless slogan fashioned to gain attention.
School principal Deborah Morse, seeing a sign that she was convinced encouraged drug use, crossed the street from in front of the school, and approached Frederick. She asked him to take down his banner, which he refused to do. She then forcibly took it down for him, and crumpled it up. Eventually, she suspended Frederick for 10 days.
Morse’s side claimed that at a school-sponsored event, the principal has the right to enforce school policy, which, in Juneau-Douglas’s instance, specifically forbade promotion of drug use. Frederick’s side claimed that (1) he wasn’t at the rally in his capacity as a student; (2) it’s ridiculous to say that the event was school-sponsored, since the members of the crowd were part of the general populace; (3) the phrase was nonsense, so it couldn’t have been promoting drug use; and (4) even if he was a student, and was at a school-sponsored function, and was holding up a sign that promoted drug use, he still had a right to free speech.
The Court’s acceptance of claims (1) and/or (2) would make the case easy. The First Amendment guarantees private citizens the right to behave like idiots in front of television cameras. Accepting claim (3) would make Morse’s actions indefensible under the school’s policy. Only claim (4) raises serious constitutional issues.In a series of past rulings, the Supremes have said that a student does indeed have a right to free speech; however, that right is not absolute. But the details of specific situations in which a student’s speech might be curtailed are vague.
Naturally, the usual First Amendment protectors —the ACLU, the National Coalition Against Censorship, and the Center for Individual Rights — supported Frederick’s cause. In addition, the Drug Policy Center and Students for Sensible Drug Policy filed briefs high on his argument.
But, then, the bad guys entered. Those great champions of free speech — the Alliance Defense Fund (James Dobson, a founder), the American Center for Law and Justice (Pat Robertson’s legal arm), the Christian Legal Society, the Liberty Counsel, and the Rutherford Institute — also decided that Frederick and students everywhere should have a right to say, verbally or symbolically, whatever they want. School attendees should be able to sport jeans promoting Jesus, wear hats demeaning homosexuals, distribute pamphlets on the evils of evolution, display baby-killer buttons, and tote signs against stem-cell research. Hey, the theocrats had just noticed that it’s a free country.
If the Morse decision, as I fervently hope, reinforces a student’s right to speak his or her mind, then what? Must public schools allow religious proselytizing in their buildings, which, of course, are paid for with taxpayer cash? I’d like to think otherwise, but how not? Under what justification? What content-neutral school policy could prohibit speakers with a religious agenda?
Which First Amendment right trumps the other?