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.