Bong Hits 4 Free Speech

When the Supreme Court ruled on Monday that student Joseph Frederick wasn’t wrongfully punished for unfurling a 14-foot banner reading “BONG HiTS 4 JESUS” during an Olympic torch relay school students were released from school to attend, Chief Justice John Roberts ruled for the majority, “Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.” But the banner didn’t say “TAKE BONG HITS” or explicitly promote an illicit act, so what did the court actually rule? Even if the message is ambiguous and nonsensical, if school administrators interpret it as tacitly promoting an illegal act or in violation of school policies and objectives, then they have the constitutional OK to censor or punish the student involved. As Justice John Paul Stevens ruled for the minority,

“In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed.”

So much for that April Fool’s edition this year, journalism students.

There’s no question public school students in school simply do not have the same rights as adults or even minors when outside school. Students may not have the same rights but do have similar rights: searches and seizures can be conducted with “reasonable suspicion” rather than “probable cause” but “Schoolchildren have legitimate expectations of privacy.” The court has also ruled “Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment.” Students have the right to give their side of the story, cross-examine witnesses, see and present evidence against and supporting them, and be afforded a hearing, at least if they face prolonged suspension.

The first famous case to affirm students’ rights was in 1943 when the court affirmed the right of Jehovah’s Witnesses not to salute Old Glory or say the Pledge of Allegiance (“under God” wasn’t included into the Pledge until 1954 so that was a non-issue). The students had the right to refrain not because it violated their religious freedom rights but their free speech rights to quietly dissent. Justice Robert Jackson ruled for the majority, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The most important students’ rights case has been Tinker v. Des Moines in 1969, when Justice Abe Fortas ruled for the majority, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Furthermore, “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.” The issue at hand was schoolchildren suspended for wearing black armbands to protest the Vietnam War, but because the action didn’t cause a disruption, didn’t infringe other students’ rights and was a symbolic political expression, it was protected free speech.

The first court ruling to curtail students’ free speech rights was Bethel v. Fraser in 1986, when the court ruled that student speech that is not legally obscene but patently offensive may be censored and punished. Chief Justice Warren Burger ruled, “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Matthew Fraser was his pal’s campaign manager for student office and delivered the following speech at a school assembly:

“I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. Jeff is a man who will go to the very end — even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president — he'll never come between you and the best our high school can be.”

Students in the audience became a bit rambunctious but not riotous. But, the court argued, because the speech was given at a school-sponsored function before an audience of unassuming students, not to mention minors, and was filled with sexual innuendo, Fraser wasn’t wrongfully suspended for delivering his speech. “The marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals,” Burger ruled. Justice Thurgood Marshall dissented, arguing there was no disruption, and Justice Stevens dissented, saying that Fraser had no expectation to believe he was violating written school rules or would be punished with a three-day suspension. “It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings,” Stevens ruled. “On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment.” Fraser’s speech may have been inappropriate for such a forum — although his punishment was certainly gratuitous — but how far should “vulgar and offensive terms in public discourse” be restricted? Can a student be suspended for wearing a T-shirt with the Confederate flag (without any lucidly racist language)? Can a student be punished for having a crucified Jesus sticker on his binder? A symbol used by hate groups and a picture of a dead body could be offensive to some student or administrator.

The next significant case was Hazelwood v. Kuhlmeier in 1988, a case involving a high school censoring two student newspaper stories: one on teenage pregnancy and one on divorces. The former used anonymous sources but their anonymity wasn’t significantly secured, and the latter wasn’t written very objectively. Justice Byron White ruled for the majority that the school didn’t infringe the newspaper staff’s free speech or free press rights, especially since doing so was school policy and not a sudden departure from non-censorship practices. The decision was sweeping: “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.” “School-sponsored expressive activities” could also include yearbooks, literary magazines, plays and art displays. In a dissent, Justice John Brennan, who concurred in Bethel, acknowledged that disruptive and offensive conduct runs afoul of “pedagogical functions” but

“Other student speech, however, frustrates the school's legitimate pedagogical purposes merely by expressing a message that conflicts with the school's, without directly interfering with the school's expression of its message: a student who responds to a political science teacher's question with the retort, ‘socialism is good,’ subverts the school's inculcation of the message that capitalism is better.”

So after Hazelwood, does that mean administrators can pull a yearbook photo of a couple kissing? Or censor a poem in a literary magazine about suicide? Or refuse to allow the Drama Club to perform Romeo & Juliet because several people are killed in the play? Or take down a photograph in a student art gallery of a group of girls doing the “Charlie’s Angels” pose brandishing finger guns?

So what does Morse v. Frederick tell us (besides the fact the Ninth Circuit remains the most overturned appeals court)? For one, it says that school administrators’ authority extends to off-campus locations and school-initiated activities even if they’re at public places and the event isn’t school-sponsored, such as a zoo or museum. Seems reasonable enough, to say students are still under the watch and rules of the school on field trips. But back to the original question of “Bong Hits.” Roberts heavily relied upon Fraser and partly on Hazelwood, even though the former concerned sexually lewd verbal speech and the latter concerned editorial discretion and both pertained to school-sponsored forums. He also incorporated two drug testing cases, from 1995 and 2002, when the court OK’d random drug testing for student athletes and any students participating in extracurricular activities, respectively. “Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse,” Roberts ruled. Frederick insisted he only wanted to grab the attention of cameras and wasn’t promoting illicit drug use but wouldn’t he say the same thing if his banner read “LEGALIZE MARIJUANA” or “WAR ON DRUGS IS WRONG”? Several religious groups usually at odds with ACLU supported Frederick, fearing that students’ religious rights could be curtailed if the court sided with the principal. Roberts tried to back off from any sweeping First Amendment infringement, ruling, “After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.” Justices Samuel Alito and Anthony Kennedy ruled something similar in a concurrence

“on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

But where and how do you draw the line between advocating an illegal act and simply contributing to dialogue? Does a political message lose its constitutional protection simply because it’s presented in an unorthodox or satirical manner? Justice Stevens wondered if “the court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner,” which may be advocating drinking or religion or both. Roberts himself said Frederick’s message was “cryptic” but could mean “[Take] bong hits,” “Bong hits [are a good thing]” or “[we take] bong hits.” But couldn’t it hypothetically also say “Bong hits [are bad]” or “[Don’t do] bong hits”? As for future “Bong hits” related issues and cases, that’s for the schools and the courts to decide.

The biggest fear after Morse, though, may be a right-wing judge citing Justice Clarence Thomas’ concurrence:

“In my view, the history of public education suggests that the First Amendment , as originally understood, does not protect student speech in public schools. ... I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”