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March 19, 2007
Bong Hits for What?
Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.
This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.
So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?
The school district has maintained that the phrase is an endorsement of marijuana use, and the Ninth Circuit agreed. But Frederick has repeatedly denied this interpretation. He initially told his principal that the banner meant, "Better Olympic National Games -- Head into Town 4 Jesus." Somewhat more plausibly, the Washington Post quotes Frederick as explaining, "I wasn't trying to say anything about religion. I wasn't trying to say anything about drugs. I was just trying to say something. I wanted to use my right to free speech, and I did it." Or, as Frederick’s brief to the Supreme Court explains, “I wasn’t trying to spread any idea. I was just trying to assert my right.”
Not trying to spread any idea?! Given the emphasis in First Amendment doctrine on the importance of free exchange of ideas, this defense of Frederick’s speech is unusual. It might make Frederick a less sympathetic student speaker than, say, the high school students who wore black armbands to protest the Vietnam war. If Frederick’s speech is neither an endorsement of drugs nor an attempt to spread any idea at all, is it just a barbaric yawp sounded over the roofs of the world? And does the First Amendment protect barbaric yawps?
Even if the banner is not an endorsement of drug use, it still could be speech with content. Frederick and his principal had a “running feud” over the scope of his constitutional rights even before the Bong Hits banner incident. Having known a few high school students similarly adamant about their First Amendment rights, I find Frederick’s explanations quite believable. He wanted to speak, and more precisely, to resist the authority figure that he perceived to trample on his rights. His message was one of defiance, and his principal seemed to hear that message very clearly. In a way that Nancy Reagan never intended, with his “Bong Hits 4 Jesus” banner Joseph Frederick was probably just saying no.
Posted by Alice Ristroph at March 19, 2007 01:42 PM
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Comments
"Bong Hits 4 Jesus" is, among other things, an absurdist juxtaposition. While plenty of institutions such as government, church and school admonish youth not to use drugs, these very same institutions often admonish youth to "get religion" (usually of the Christian sort). The juxtaposition of "bong hits" and "Jesus" at a public event promoting the (supposedly) clean-living Olympics definitely has content.
Also, what does it matter whether Frederick can clearly articulate some sort of "content" or "rationale" for the banner? We certainly don't hold artists, writers, or poets to such a standard in order for their work to be protected.
Best,
Matthew Frederick (no relation!)
Posted by: matthew frederick at March 19, 2007 06:44 PM
Alice,
Weirdly, I think there may actually be some limited content here. There's a whole segment of modern youth culture that focuses on conspicuous expression of jadedness. This often manifests in slogans that try to be cool, ironic, and detached about subjects that others take very seriously, and of course, Jesus is a prime example. For example, there are shirts that show a hang-gliding Jesus and read, "what *wouldn't* Jesus do?" (See http://www.bustedtees.com/shirt/jesus/ ).
Of course, a teenager aiming for jaded irony can't exactly say that in his court filings, can he?
Posted by: Kaimi at March 19, 2007 06:47 PM
Kaimi,
Of course he can say that in his court filings, and he probably should (or should have). Jaded irony is as classically American as Washington Irving, Mark Twain and James Thurber, to name a few off of the top of my head.
-matt
Posted by: matthew frederick at March 19, 2007 06:56 PM
Regardless of the student's intent, the text of his banner quite obviously criticizes the heartlessness of the Raich decision. It’s essentially politico-religious speech calling for the decriminalization of marijuana for the terminally ill in accordance with the virtue of compassion dictated by the teachings of Christ. It doesn’t advocate Bong Hits 4 Students. It advocates Bong Hits 4 Jesus.
Promoting compassion and leniency is not inconsistent with the educational mission of a public school.
Posted by: 4 Jesus means "for Jesus" at March 19, 2007 07:46 PM
Re: the First Amendment status of barbaric yawps, see Brandt v. Board of Education:
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-1999_027.pdf#page=8
Posted by: Bruce Boyden at March 19, 2007 08:36 PM
Barbaric yawps don't leave people asking what it means. It's clearly modern art. :)
Posted by: Adam at March 19, 2007 11:49 PM
On an individual liberty/self-fulfillment model for the First Amendment, a barbaric yawp clearly should be protected because it is not about what anyone else understands the speaker to be saying in the development of his own self-actualization/fulfillment.
In Hurley (the St. Patrick's Day Parade case), the Court said unanimously that "a narrow, succinctly articulable message is not a condition of constitutional protection." That would seem to pull a barbaric yawp within the 1st Amendment's realm.
Souter in Hurley went on to say that requiring a distinct, articulable message would remove from the realm of the First Amendment Lewis Carroll's Jabberwocky, the painting of Pollock, and the music of Schonberg. All of that is as readily meaningful as anything Mr. Frederick tried to say. The implication is it all is protected.
Adam must be right--it is all modern art.
Posted by: Howard Wasserman at March 20, 2007 07:01 AM
This all makes me think that if I ever get around to starting a band, we'll call ourselves the Barbaric Yawps. Unless someone has taken that moniker already.
Posted by: Kaimi at March 20, 2007 02:41 PM
Question, in the oral arguments some of the justices were thinking the slogan promoted drug abuse. So if I have that bumper sticker on my car with the slogan, is that probable cause?
Yes, you can buy the bumper stickers and T-shirts online now.
Posted by: George at March 21, 2007 02:25 AM
This has to be a no-brainer, right? I mean, they were not on school property. School was not in session. There are no violations of the Tinker test (harming or threatening the rights of other students or disrupting the business of the school). This has to be a technical exercise ... in further mainstreaming interpretation or adjusting application of existing standards. These are, after all, days when justince cannot restrain themselves, and must write separate, concurring opions because they only want to further emphasize a point made in the Opinion of the Cout (as opposed to the more traditional disagreeing with the logic of the Opinion of the Court).
best,
Posted by: P.S. Ruckman, Jr. at March 28, 2007 01:59 PM
I think it is highly dangerous to allow a principal to make a subjective and arbitrary decision on whether or not to allow certain types of speech. I mean forget the specific message. This doctrine of the, "educational mission," can be furthered in future cases to include a penumbra of things that limit students rights. I regret that the message wasn't more powerful, because that might have helped Frederick's case. But even so, the rights of students to say anything in public schools is under attack by Justice Thomas, "As originally understood the Constitution doesn't protect the rights of students to speak freely in public schools." !
Posted by: Alex Rosenberg at August 8, 2007 02:53 PM
