Thursday, March 22, 2007

Bong Hits 4 ... Establishment?

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” 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?


BlackSun said...

I think the decision rests on whether or not the student was considered to be in school, or on school property. In the oral arguments I read, it seemed that the justices had agreed the event was essentially an "outdoor classroom." If this is the case, they probably will rule against the student.

Schools have a long tradition of limiting free speech. They disallow wearing of slogans on clothing, or symbols or certain colors. They also are permitted to search lockers without a warrant according to the law.

So I don't think there's any danger of religious proselytizing being allowed on school property during school hours (unless the Supreme Court is totally going to ignore precedent).

I seem to remember reading that prayer clubs and the like are allowed to use school facilities outside of school hours. But religion cannot be taught in the classroom.

There's also every so often the odd dustup over prayers at commencement exercises, etc.

If they do rule that the student was "in class" AND he had the right to total free speech, then that could allow what you are saying. But that would open the door to total mayhem. Teachers would no longer be able to maintain order or control any subjects of discussion. I don't think the Supreme Court is prepared to go there.

But you're right, this whole thing is beyond arcane.

Susan (Ayame) said...

Delurking! ;)


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?

--end quote--

After thinking about your post, I wondered if the idea that some speech can create or lead to violence would trump certain free speech rights in public schools. Since many of the examples you listed (baby-killer buttons, anti-gay pamphlets) could lead to violent encounters, I believe school officials would be free to ban such expressions.

As for me, I have to say that I'm strongly on the side of Separation of Church and State. I think that trumps Free Speech in most cases where they might come into conflict... But you're right. It's a puzzler.


Joe said...

I think its simple. The school overstepped its bounds. The "student" was out in public at a public event that happened to be across the street from the school. There were non students there. The free speech rights overcome the incorrect position of the school. If this was in the school, its not the same. But, it was outside.
And, I'm for the absolute separation of church and state.

Pete Guither said...

The decision in Tinker provides all that's necessary. As long as it doesn't disrupt the educational process, it's free speech, whether it's bong hits for Jesus, or Jesus for fetuses. The moment either one of those interferes with learning, they're gone.

Merely expressing something that is not compatible with the particular educational mission of the school is not proper cause for speech suppression.

Anonymous said...

If you’ve read my posts with even the attention of a stoner

Dear Sir or Madam:

I am intrigued, and would like to subscribe to your newsletter.


The Exterminator said...


I'm assuming that your initial doesn't stand for "god," so I've added you to my mailing list. Expect to receive your first copy of Bong Hits for G, Hold the Zuss in, like, 4 to 6 weeks, or whenever.

Might I also recommend a companion subscription to The Atlantic Munchy?

Rose said...

Freedom of speech is extremely important, but there is also something else to consider: According to Christians, Jesus had long hair, wore sandals, etc. Do they honestly believe that if Jesus did exist (as a human), he would not have smoked some natural stuff????

Perhaps, Jesus preferred joints? Is that why they're so upset? LOL