When Will Jesus Bring the Bong?

One of the highly anticipated cases from the Supreme Court that was handed down yesterday was Morse v. Frederick, otherwise known as the "Bong Hits 4 Jesus" case. A very divided Court (as seems par for the course these days, Chief Justice Consensus notwithstanding) ruled against the student in question in a decision that raises more questions than it answers.

The case involved a high school student in Alaska named Joseph Frederick. One morning, his school principal decided to allow students to head outside and watch the Olympic torch pass by on its way to Salt Lake City. Frederick was late for school that day and actually didn't make it in before everyone headed outside. He joined some friends across the street and, as the torch passed by and TV cameras were rolling, unfurled a 14-foot banner that said "Bong Hits 4 Jesus." The principal noticed, confiscated the banner (Frederick refused to take it down), and later suspended him. Frederick sued, arguing that the principal's actions violated his First Amendment rights.

For Frederick's part, he claims that the banner had no real message, didn't mean anything, and was done simply get attention. In other words, he employed the technique of Jon Anderson (“the words don’t really mean anything, they just sound good together”) with the motivation Eric Cartman (“I’m gonna’ be on television! I’m gonna’ be on television!”), or perhaps Suzanne Stone ("You aren't really anybody in America if you're not on TV.")

That's not how the Court, in an opinion by the Chief Justice, saw it. The banner preached a message of illegal behavior and therefore the principal had a right to step in and quash it. Distinguishing the famous Tinker case, not altogether persuasively, the Court essentially sacrificed student speech on the altar of the drug war, where the carcasses of the Fourth and Fourteenth Amendment already fester.

The dissent, by Justice Stevens, is not much better, hanging its hat on the nebulousness of the message, but apparently agreeing in theory that "drug speech is bad" and therefore verboten in school. Justices Alito and Kennedy, in a concurrence, try to narrow the holding as much as possible to not allow suppression of honest political speech, but one wonders how successful that attempt will be. Justice Thomas goes completely off on a different track, would gut Tinker completely, and return the First Amendment's place in schools to its 19th century state (which is to say, with no application whatsoever).

This was an odd case to make it this far and get the Court's review. For one thing, the kid filing suit positively disavows that he was trying to make any greater point with his speech other than "hey, check me out." That probably deserves some kind of First Amendment protection, but it's hardly the core conduct that the Founders imagined the First Amendment would protect. For another, there's at least a legitimate argument to make that the kid wasn't within the school's reach when he unfurled the banner - they were not actually in school at the time and he hadn't even been in the building that day. I know the Court unanimously found otherwise, but c'mon!

With all that, I tend to think that Justice Souter had it right. He concurred in the judgment, but would have resolved the case on qualified immunity grounds (briefly, a public figure can't be liable for violating constitutional rights if the state of the law is unclear). That would have left the school with some authority to act, but without causing even more higgledy-piggledy in the legal landscape.

There's a lengthy and interesting discussion of Morse in all its glory over at Volokh Conspiracy.