The U.S. Supreme Court has effectively criminalized any student mention of drugs in school.
In Morse v. Frederick, decided June 25, 2007, the court found that Joseph Frederick, a student who unfurled a 14’ banner reading "BONG HiTS 4 JESUS" at a school event, was rightfully suspended in 2002 by school principal Deborah Morse for promoting illegal drug use.
[Students at Juneau-Douglas High School in Alaska unfurling the banner whose message has now been banned by the Supreme Court for advocating illegal drug use. www.msnbc.msn.com/id/17648725]
Frederick displayed the banner during a school-sponsored outing to watch the passing of the Olympic Torch. He contested the 10-day suspension, arguing "that the words were just nonsense meant to attract television cameras." The 9th Circuit of the U.S. Court of Appeals agreed with Frederick, but the U.S. Supreme Court sided with Morse and the Juneau School Board.
Delivering the majority opinion, Chief Justice John Roberts didn’t buy Frederick’s claim that he was just a publicity seeker. While acknowledging that the message on the banner is "cryptic," a word usually applied to language that is intentionally obscure or difficult to understand, Roberts insisted that the principal’s interpretation of the banner as advocating drug use was a reasonable one.
In the landmark case of Tinker v. Des Moines, the Supreme Court established students’ right to exercise protected political speech in school. But neither side in the present case argued that the bong banner was political. Frederick, supported by the ACLU, contended he was just acting silly and trying to get on TV, while his principal, represented before the Court by Kenneth Starr, who was actually on TV when as Special Prosecutor he tried to get Pres. Bill Clinton to say something both meaningful and incriminating, argued that the banner said yes to drugs.
As Justice John Paul Stevens observes in his dissent to the majority opinion, there are some clearly-defined categories of speech not protected by the First Amendment: fighting words, obscenity, and commercial speech. Tinker adds disruptive speech in schools to that list. But Stevens is rightly concerned that in Morse the Court placed one type of narrowly-defined speech – advocating illegal drug use while in school – outside the broad umbrella of First Amendment protection.
But the Court did much more than that. It ruled the literal interpretation of the banner was the controlling interpretation. Unfortunately, that meaning, while clear to Chief Justice Roberts and Principal Morse, is not clear to me, or to Justice Stevens and the others who dissented.
Roberts deconstructs "Bong hits 4 Jesus" as either "[You take] bong hits," an "imperative encouraging viewers to smoke marijuana." Or "[We take] bong hits," a declarative that he reads as celebrating illegal drug use and encouraging other students to use drugs.
According to Roberts, even though the banner could mean a couple of things, its support of drugs is always clear. Roberts continues, "The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is 'meaningless and funny.' … Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs."
Yes, but it also ignores the banner's undeniable reference to Jesus – after all, the banner reads "Bong hits 4 Jesus" (emphasis added). An atheist could easily interpret the cryptic words as support for Christianity in the schools, which would also be illegal, and, since the banner mentions Jesus in the same breath as marijuana, a fundamentalist could reasonably attack the message as blasphemous – maybe not illegal, but surely fighting words likely to disrupt schools, and as such likely to be considered banned speech, not protected speech. But since neither Frederick nor Morse are concerned with exactly what Jesus might be doing on the banner, Roberts feels comfortable ignoring religion when interpreting the real meaning of the sentence.
In addition to dismissing the very real presence of Jesus on the banner, Roberts dismisses the very real possibility that the banner's words might be nothing more than a meaningless stunt of the kind that is actively encouraged by television shows where audience members wear ridiculous get-ups and carry outrageous signs while waving frantically in order to catch the camera's eye.
Despite Roberts' noble attempts to read the banner's meaning, what supports the nonsense interpretation is the fact that the banner's words don't seem to have either a literal or a figurative meaning. Any way you slice it, "Bong hits 4 Jesus" is patent nonsense, like linguist Noam Chomsky's classic phrase, "Colorless green ideas sleep furiously," words which look like English but don’t mean like English, words which illustrate that language has other roles besides that of communicating.
But lawyers, like English majors, are trained to make meaning where ordinary people see only nonsense, and while the banner sounds more like it comes straight out of "South Park," the Chief Justice has ruled that you can't say "Bong hits 4 Jesus" in school because that means "I want you to use drugs."
Justice Clarence Thomas would go even farther. In a separate opinion supporting the majority, Thomas argues that schools have an absolute right going back centuries to limit and control all student speech and action, and to punish infractions of even the most unreasonable or trivial school regulations. He writes, "Early public schools gave total control to teachers, who expected obedience." Thomas adds that he would like to void Tinker and all other precedents giving students any First Amendment protections at all. But even the Court’s arch-conservatives, Justices Anthony Scalia and Samuel Alito, find that position too extreme and simply sign on to the Roberts opinion.
While to me, and to many other observers, "Bong hits 4 Jesus" means nothing at all, I'm sure it did mean something to Principal Morse, and her interpretation is certainly a valid one. But Chief Justice Roberts is mistaken to believe her claim that she read the banner as advocating illegal drug use. I think she saw exactly what Joseph Frederick intended with his words, not a literal defense of controlled substances, but a sign that said to her, in no uncertain terms, "I’m making fun of Juneau-Douglas High School on national TV," and she responded, as any red-blooded principal would, whether it be Hogwarts School head Dolores Umbridge or my old principal, Mr. Kramer, by suspending the student behind the prank.
But satire, even ineffective satire like Joseph Frederick's, is protected speech, and just because a principal can't take a joke is no reason for them to take the law into their own hands. Obviously most justices of the Supreme Court have no sense of humor either, and instead of admitting that they disapprove of student hijinks, they'd rather set a dangerous precedent that allows schools to shut down any and all discussion of drugs on the grounds that uttering the words is prima facie encouragement of illegal drug use. If Clarence Thomas wants to do away with the free speech protections that Tinker gave to students, the Morse decision is certainly the way to start that process.
