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The Morse v. Frederick Dissent:

A couple of observations:

1. Justice Stevens' dissent, joined by Justices Souter and Ginsburg, seems to endorse some restriction on pro-illegal-drug-use speech (and not just speech that falls in the narrow generally unprotected category of speech intended to and likely to incite imminent illegal conduct). It is "willing to assume that ... the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly 'advocates the use of substances that are illegal to minors,'" and treats it as an implication of the "unremarkable proposition" "that deterring drug use by schoolchildren is a valid and terribly important interest." "[T]he 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." And while Justice Stevens says that he is only "assum[ing] for the sake of argument" that "Given that the relationship between schools and students 'is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,' it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting," the tenor of all these statements strikes me as supporting, if grudgingly, restrictions on express advocacy of illegal drug use.

So it seems that everyone on the Court, with the possible exception of Justice Breyer, is willing to endorse some viewpoint-based restriction on some pro-drug speech (even outside the narrow and long-established incitement exception). Moreover, everyone with the exception of Justice Thomas and the possible exception of Justice Breyer, is willing to endorse what seems like a viewpoint-based First Amendment exception to do it. (Justice Thomas would say that pretty much all speech by K-12 students is unprotected from the government acting as educator, a viewpoint-neutral exception that allows a wide range of viewpoint-based speech restrictions.) The question is chiefly about the difference in the scope of the exception.

2. On the facts, Justice Stevens' argument that Frederick's speech wasn't advocacy of drug use strikes me as quite weak. Here is what he argues (one paragraph break added):

To the extent the Court independently finds that "BONG HiTS 4 JESUS" [can most reasonably be interpreted as] the advocacy of illegal drug use ... that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. Ante, at 7 (positing that the banner might mean, alternatively, "'[Take] bong hits,'" "'bong hits [are a good thing],'" or "'[we take] bong hits'"). Frederick's credible and uncontradicted explanation for the message -- he just wanted to get on television -- is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. FN7 But most importantly, it takes real imagination to read a "cryptic" message (the Court's characterization, not mine) with a slanting drug reference as an incitement to drug use.

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.

But it seems to me clear that the most plausible interpretation of Frederick's speech is precisely that marijuana use is good, and should be engaged in. The alternative meanings mentioned by the majority, which Justice Stevens points to, are quite consistent with that; even just "[we take] bong hits" has as its "most probable" interpretation that "[we take] bong hits [and that's good]." Ask high school students or recent high school graduates whom you know how they would likely interpret the banner. I asked three this morning, and all of them treated the statement as being generally pro-drug.

Doubtless the statement is ambiguous, as many short slogans are. For instance, it's not clear whether the "4 Jesus" really tries to bring in a religious meaning. But if you're looking for one "most plausible interpretation," "drug use is good" is surely part of it.

As to Justice Stevens' claim that the message is too "dumb" to be effective advocacy, I'm not sure: The theory even with most express advocacy is that the messages persuade when aggregated together, not that they will move many minds standing alone, and even jocular and "dumb" support of marijuana use may in the aggregate lead students to think of marijuana use as cool and fun. But more importantly, even dumb advocacy is still advocacy.

3. Perhaps, though, Justice Stevens should be arguing not that the speech isn't advocacy, but that it's not express enough to be advocacy -- that only messages that expressly say "take bong hits," "use marijuana," "people should use marijuana," and the like should be proscribable. "BONG HiTs 4 JESUS" definitely doesn't seem express about anything much; and limiting the exception to express advocacy would indeed limit the exception's scope.

At the same time, First Amendment law almost never draws distinction between express messages and pretty clear implicit messages, partly because any such distinction would either be very easy for speakers to evade, or attempts to prevent such evasion would eat away at whatever limitations the "express[ness]" requirement imposes. (Consider the related debates about express advocacy of election or defeat of a candidate in campaign finance law -- a debate that I unfortunately don't have the time to get into this weak, despite the fascinating-looking FEC v. Wisconsin Right to Life, Inc. decision.) And Justice Stevens doesn't at all confront these issues, as it seems to me an effective argument for limiting the exception to truly express advocacy should.

4. Finally, note that the debate about whether First Amendment tests should focus on (1) whether speech could reasonably be interpreted as advocating illegal drug use, making false statements, making threats, and the like (the majority's view, at least in this case) or on (2) whether speech "can most reasonably be interpreted" as advocating illegal drug use, making false statements, making threats, and the like is a very interesting one, and should get more attention than it has historically gotten. Courts must somehow determine what a statement "means," but there are plenty of statements that have multiple plausible meanings, each of which is reasonable and none of which is the one "most reasonable" one.

I've tried to find good discussions of this in the libel context, where the factual problem of ambiguity often comes up. As I understand it, the dominant view is that the jury must find the reasonable meaning. A small minority of states (perhaps only Illinois, I think) take the view that so long as a reasonable meaning is innocent rather than defamatory, the statement must be found nondefamatory. But in practice, unless I'm mistaken, the question is often the opposite, which is whether a reasonable person could interpret the statement as defamatory (even if other reasonable people would take the opposite view). I'd love to hear from people who have researched the subject more thoroughly than I have, and have some good cases -- likely libel cases -- that discuss this.

Nonetheless, it seems to me that Justice Stevens erred in deciding that "BONG HiTs 4 JESUS" would "most reasonably be interpreted" as simply being a "nonsense message"; instead, the most reasonable interpretation is a message of vague support for marijuana use, the very interpretation that the majority adopted using its focus on what constitutes a reasonable meaning. Thus, this interesting debate (whether we look to the reasonable meaning, which is to say the most reasonable meaning, or a reasonable meaning, which is to say some meaning that at least a substantial minority would accept) isn't fully implicated here.

Anderson (mail) (www):
I found Dahlia Lithwick's take interesting: you can read as much into "Bong Hits 4 Jesus" as is necessary to limit the speech in question, but when it's an "advocacy ad" telling you that John Kerry wants to abort every fetus in America, you can't possibly read into that "and therefore you shouldn't vote for him," because that would limit speech.

Lithwick is often too simplistic, &this may be an example; but it's persuasive nonetheless.
6.26.2007 1:12pm
ATRGeek:
This, of course, is the mess you get when both the "conservatives" and the "liberals" try to stack the Court with authoritarians (just different sorts respectively).
6.26.2007 1:24pm
Keyes:
"Bong hits 4 Jesus"

Jesus, if he ever lived, has been dead for about 2000 years. So if taken literally, the message is nonsensical.

If the message is understood to mean, "in the name of Jesus, take bong hits," then it advocates drug use but with a religious justification.

I don't buy into the argument that the banner conveyed a general message -- sort of an anti-PSA -- that pot smoking is good.

Regardless, I think there's something to be said for the argument that those in the majority were more than a bit miffed that Jesus was dragged into the entire mess. As good Catholics, they were insulted.

Yes, I'm making the "Catholic-bloc" argument. I happen to think it has legs on this one.
6.26.2007 1:43pm
Ben P (mail):
I think Stevens argument is stronger than you give it credit for, but it's not how I would have stated it.

Regardless of how "dumb" they are, I don't think any high school student would reasonably interpret the message "Bong hits 4 Jesus" as being either truly advocacy of drug use, or in any way religious.

It was meant to be funny for Christ's sake.

When ESPN GameDay came to the Arkansas Campus, I have a large number of friends that made signs using the words "Nutt" (Head Coach Houston Nutt) and "Dick" (Quarterback Casey Dick) in various semi-suggestive phrases.

Is the phrase "Nutt likes Dick" actually suggesting that coach nutt is homosexual? or is it advocating homosexuality?

Is the phrase "ESPN can show our dick on GameDay" advocating that pornography be broadcast on television?


A poster that says "Bong hits 4 Jesus" may be juvenile, (much like the signs above) and may be a "dumb" idea, but to suggest that it's anything more than a tangential reference to drugs and Christianity (the opposites creating irony) in an attempt to be funny is clearly overstating the case.
6.26.2007 1:45pm
BruceM (mail) (www):
There are "drug exceptions" to all other rights guaranteed by the bill of rights, so why not the first amendment as well? Makes perfect sense. You can't ban the private, personal possession of leaves and powders by 300 million people without unlimited government power.
6.26.2007 1:46pm
Steve:
But if it's nonsense speech, or "dumb advocacy" as Stevens puts it, then I don't see why we should be particularly troubled by the school punishing it. A nonsense slogan hardly implicates the core values of the First Amendment.
6.26.2007 1:56pm
Prince Roy (mail) (www):
Incredible. For those of you who take Professor Volokh's position that "the most plausible interpretation of Frederick's speech is precisely that marijuana use is good", I only have one question: What in the world are you people smoking?

This is an absurd result, and Ben P nails it.
6.26.2007 2:06pm
Tony Potato (mail) (www):
I'm with Ben P on this one.

But I can take it further. Why does "Bong hits 4 Jesus" necessarily advocate illegal drug use? What if the plaintiff had been making a point about using marijuana for medical purposes in one of the 12 or 13 states that allows such legal use while simultaneously referring to Jesus as a healer (medical use).

Frankly, we ought to be more concerned about how the War on Drugs and the "Just Say No" movement limits our freedoms as Americans, than about how this particular case limits our freedom of speech. There are 2 million Americans behind bars at any given time. That is the largest prison population in the world and more than 50% are there for drug crimes.

What if the sign had said "Carpet Bomb Iraq 4 Jesus?" Just wondering.
6.26.2007 2:24pm
Laura S. (www):
The preoccupation with the message of "Bong Hits 4 Jesus" is surprising to me. Indeed, I think it reads the logic of the majority backwards.

The question is whether the principal acted lawfully and whether the disciplinary action was reasonable. That means the question is whether the principal made a reasonable determination regarding the meaning, not whether the principal made the correct determination regarding the meaning.

Fixating on the latter question is a red-herring with which to smear the majority as inimical to the first-amendment and to do so simply isn't fair.

Alito's craft rarely seems particularly robust (esp. wrt the writing of the JJR), but that does not render his results impeachable b.c. it is not at all obvious that he should have bothered focusing on the message. Although, I think it likely that he did so to minimize the scope of the opinion.
6.26.2007 2:43pm
eddie (mail):
So which is it: a clear statement endorsing drug use or an ambiguous statement.

You simply cannot have it both ways.

And what about the possibility that this was precisely (either religious or political speech), e.g. Jesus would want the decriminalization of smoking a bong.

The only bright line I see is the one where the Supremes got this one totally wrong by using false arguments and ignoring precedent.
6.26.2007 2:53pm
eddie (mail):
A further question glossed over by most commentators:

Why is the standard of review "reasonableness"?


And to answer Steve: If the freedom of speech does not permit every individual, even students, from uttering nonsense, then how can it protect meaningful speech.
6.26.2007 2:58pm
K:
Deciding this based upon what the banner said or meant is the wrong approach.

Doing so means every school administrator is violating someone's sacred rights if a collection of judges finally decide, perhaps years later and by the narrowest of margins, that a cryptic phrase meant X or it meant Y, or it meant nothing.

Educators, just like business people, or sports referees, should have reasonable authority when events are in progress. And that means mistakes will be made. Bad calls happen. It isn't as if they took the kid to the basement and pulled out his fingernails.
6.26.2007 3:01pm
William Eric Wolff (mail):
But it seems to me clear that the most plausible interpretation of Frederick's speech is precisely that marijuana use is good, and should be engaged in.

How much do you know about the plaintiff? The phrase may seem clearly positive to Christians, in general. But it is by no means clearly positive. What if the sign was: "Bong Hits 4 Bin Laden"? What clear message would you see? (You may recall that illegal drug use has been tied to support of terrorism--poppy is a major crop in Afghanistan.) I submit that the meaning, as with all meanings, depends on both the author and the audience. I see neither evidence of the plaintiff advocating any religion nor evidence of the plaintiff advocating, in any other way, drug use. Hence, I see no clarity of the message.
6.26.2007 3:15pm
Elliot123 (mail):
I suggest there comes a time when the cleverness of people in making fine distinctions and applying minute analysis is beyond the ability of the society to apply such cleverness and analysis in the real world. Did any of these justices ever manage anything? Law firm? School? Business?
6.26.2007 3:15pm
William Eric Wolff (mail):
The question is whether the principal acted lawfully and whether the disciplinary action was reasonable. That means the question is whether the principal made a reasonable determination regarding the meaning, not whether the principal made the correct determination regarding the meaning.

I concur with Laura S. on the above. I think we're missing the central issue. That is, limiting student speech is wrong.

By permitting teachers to punish student speech, we are not preventing students from speaking, only intimidating them into speaking in private rather than in public. We should be encouraging teachers have open discussions with students, not to stifle statements that may seem contrary to school policy.

Furthermore, the message we are teaching is that rights aren't inalienable. And there's no clear message to what extent rights can be limited. If something as innocuous as "Bong Hits 4 Jesus" can be punished, what about "Vote for Joe", where Joe may have views that are contrary to school policy? If we argue that political speech trumps "Bong Hits 4 Jesus"--which may be political or religious or anything else we want it to be, or which may be nonsense--the rule we have is Rock, Scissors, Paper.

In New York City, where I was born, was raised, and lived most of my life, the voting polls were always located in public schools. May teachers prevent students (18 or older and otherwise eligible to vote) from voting if the teachers have reason to believe the students will vote for someone whose views the teachers don't like? I mean, voting is merely a right, not necessarily inalienable, and the voter, in this case, is a student on school property.
6.26.2007 3:56pm
Laura S. (www):
Eddie: The standard is reasonableness because of the quasi-school setting. Principals are charged with in loco parentis responsibility (and authority) for (and over) the children under their charge.

AFAIK, this standard is quite pragmatic. Adminisrators are tugged in various directions. A reasonable question might be: if the law is construed otherwise will principals allow children to attend events like this in the future where they would 1) be held responsible for the children but 2) lack any authority.
6.26.2007 4:01pm
Charlie (Colorado) (mail):
It seems to me that while occupied with a pilpul on what exactly "Bong Hits 4 Jesus" means, we're missing the glaring issue: why shouldn't a person be allowed to say "marijuana is good"? And if that is --- as I would think --- protected speech, why is it that it becomes unprotected speech when suppressed by an agent of the state, just because the agent is a school principal and the agency a school?
6.26.2007 4:05pm
TSW:
I don't see how the statement itself expresses the message that "marijuana use is good, and should be engaged in." The reasoning in favor of this interpretation seems to be that (1) it associates marijuana use with Jesus and (2) anything associated with Jesus must be good. But as William Eric Wolf points out this interpretation depends entirely on one's opinion of Jesus Christ and Christianity. Many people do believe that Jesus is to be emulated and anything associated with him must be good, and this is evidenced for example by the common "What Would Jesus Do?" slogan. However, the kind of kids who wear the WWJD bracelets are not likely the same kids who take bong hits. Generally speaking, evangelical Christians and stoners represent different subgroups of the high-school age population; there's not much overlap there. I therefore find it highly unlikely that the intended message was something along the lines of "you should smoke marijuana because Jesus Christ commands it." But without some sort of implicit religious commandment the statement doesn't advocate anything.

Eugene is almost certainly correct that the message is "generally pro-drug," but that's not the same as advocacy. Anytime a high school student makes a reference to "bong hits" one can infer that it's probably positive because that's a term commonly used by marijuana smokers but not by anti-drug advocates. Conversely, any reference to "marijuana cigarettes" is almost certainly anti-drug. If a person simply wrote "bong hits" and nothing else on a paper and held it up, I would assume he was generally pro-drug, but the term itself wouldn't advocate anything. I don't see how appending an almost certainly sarcastic reference to Jesus turns it into advocacy either.

The most reasonable interpretation of the sign was that it was intended to get a rise out of authority figures. There's a very significant overlap between people who preach about Jesus and people who preach about the dangers of drugs. To a certain kind of high school student, they're both a pain in the ass. The point was to offend them. It's the same as if someone wrote "gay sex 4 jesus." No one who read that would think it was making a serious argument that Christianity promotes homosexuality.
6.26.2007 4:25pm
nunzio:
This case is extremely trivial.

What kind of damages was this kid going to get anyway, emotional distress damages from having his silly banner snatched away by THE MAN and the pain and suffering from having to stay home from school for 8 days and do bong hits while watching cartoons and eating Coco Puffs on the sofa all day?

The horror.
6.26.2007 4:27pm
XON:
William Wolff and Charlie Colorado: Well said.

Nunzio: Poorly said, for the same reasons.

Particularly to WEW: You've done a much better job than I at articulating the danger in this ruling. If rights are not inalienable, and if public places are not available in which to engage in adversarial political debate, then those not represented by the party-in-government will have to strive to strive for, and then defend, their rights in the shadows, or underground.

And then, the government in power will determine that they are terrorists. . .
6.26.2007 4:39pm
KingOfMyCastle:
Quote (Mr. Wolff)"I concur with Laura S. on the above. I think we're missing the central issue. That is, limiting student speech is wrong.

By permitting teachers to punish student speech, we are not preventing students from speaking, only intimidating them into speaking in private rather than in public. We should be encouraging teachers have open discussions with students, not to stifle statements that may seem contrary to school policy.
Furthermore, the message we are teaching is that rights aren't inalienable.


This argument is driving me nuts. Why the different standards in speech between public and private school students.

Mr Wolff, you seem to think it is just horrible for a teacher to stifle a student's free speech. Why (besides where the teachers pay check comes from) is there any difference between a public and private school teacher/administrator limiting speech?

As I've said before. This whole argument is stupid. And the whole argument has been forced on us because some braniacs in the past decided to make education a government run business.

We wouldn't be having inane arguments about pre-teen free speech rights and what constitues a prayer if we moved back to a market based school system without direct government control.

I assure you that the students at my daughter's (private) school have no free speech rights other than what the parents and staff allow them. And she is also free to worship as she chooses.
6.26.2007 5:07pm
Doug Sundseth (mail):
First, "Bong hits 4 Jesus" is pretty clearly a basic anti-authoritarian satire, and every reasonable high-school administrator would recognize it as such immediately. It's bumper-sticker satire, of a piece with "Nuke a Gay Baby Whale for Jesus" or "Visualize Whirled Peas".

Unless you are willing to say that Swift's "A Modest Proposal" is advocating cannibalism (an illegal act, at least in some jurisdictions), it's pretty hard to see how this advocates criminality. Satire is hard, but it isn't that hard.
6.26.2007 5:20pm
Steve:
It seems to me that while occupied with a pilpul on what exactly "Bong Hits 4 Jesus" means, we're missing the glaring issue: why shouldn't a person be allowed to say "marijuana is good"?

Well, why shouldn't a person be allowed to say "sex with young boys is good"? And why shouldn't that hypothetical NAMBLA member be allowed to teach in the public schools, just like anyone else with an opinion? Is it because the laws against pot are, in fact, dumb, and the laws against child molestation are, in fact, good? Hey, I'm with you on both issues, but still, we can't say that it's free speech to advocate for the repeal of some laws but not free speech to advocate for the repeal of different laws.

What troubles me is that in Tinker, we had a restriction that was not content-based struck down by the Court. Now we have a new Court overruling Tinker sub silentio, by upholding a restriction that apparently IS content-based. It seems like the exact opposite of how these matters should work; the clearer it is that the government is suppressing a particular viewpoint, the more the First Amendment should be implicated.
6.26.2007 6:18pm
Feingold:
At least the kid didn't say "Bong Hits 4 Feingold." If he had, he'd have lost the support he did get from the left, as Congress needs to be able to regulate use of a politician's name. Long live the new Alien &Sedition Act!
6.26.2007 8:53pm
William Eric Wolff (mail):
Well, why shouldn't a person be allowed to say "sex with young boys is good"? And why shouldn't that hypothetical NAMBLA member be allowed to teach in the public schools, just like anyone else with an opinion?

Teachers don't have freedom of speech in the classroom at least to the extent that they are representing the school. As with anyone who works for an organization, the organization has the right to limit what the employee says, e.g., to customers. Surely, we would agree that an employee who publicly belittles the employer's product would be subject to termination by the employer. And it shouldn't matter if the employer is a public or private organization.

The same is not true for customers. A restaurant that serves Beverage X exclusively may refuse to serve a customer who is wearing a t-shirt that promotes Beverage Y. But I would think we would agree that this would not be the case for a restaurant, even a private one, at a public facility.

A school, public or private, is a special situation. Children are required by law to attend some school. Parents typically decide the school their children will attend. Parents have a right to limit what their children do. To some extent, parents can waive the rights of their children. Hence, if parents choose a private school, they may waive their children's free speech rights. Private school attendance may not require such waiver. But, especially because some families can't afford private school, as well as because private schools may require such waiver, we should not force such waiver on students who attend public schools. Otherwise, their may not be any school available for the children of parents who choose not to waive their children's rights.

The courts should not assume the waiver of rights. And rights should not be limited where there is no clear and present danger.
6.26.2007 9:19pm
Steve:
Teachers don't have freedom of speech in the classroom at least to the extent that they are representing the school. As with anyone who works for an organization, the organization has the right to limit what the employee says, e.g., to customers.

Yeah, but the fact is that public schools can legally fire NAMBLA members whether or not they proselytize the students. If you don't have a problem with that, then you don't have much room to take an absolutist position on the First Amendment in public schools.
6.26.2007 9:41pm
William Eric Wolff (mail):
Yeah, but the fact is that public schools can legally fire NAMBLA members whether or not they proselytize the students. If you don't have a problem with that, then you don't have much room to take an absolutist position on the First Amendment in public schools.

I also wrote "rights should not be limited where there is no clear and present danger." I think the issue here is that we may believe NAMBLA members to be a clear and present danger to children. Although one might argue the "assembly" clause, NAMBLA membership really isn't a First Amendment issue.
6.26.2007 10:01pm
whackjobbbb:
OK Volokh, you're gettin' entirely too wordy here... and that usually means confusion. So allow me to apply my rapier intellect, well-hewed by the reading of 3 or even as many as 4 partial readings of constitutional cases, and a full 5 minutes on this one.

The split here is between Thomas and Breyer. It may be small, and it may be vast, but that is the split in this decision... so ignore the scoreboard. The rest of these judges are simply acting as ATRGeek describes above:


This, of course, is the mess you get when both the "conservatives" and the "liberals" try to stack the Court with authoritarians (just different sorts respectively).


The 7 are playing the same stale game, and that game is censorship of whatever they feel is censorworthy. The important game is between Breyer and Thomas, and the subject you need to invest your words in is the magnitude and character of the split between these 2 guys.
6.26.2007 10:02pm
Randy R. (mail):
Kingofmycastle: "I assure you that the students at my daughter's (private) school have no free speech rights other than what the parents and staff allow them. And she is also free to worship as she chooses."

And if one day she prays to be able to speak her mind openly, I'm sure you will be there to whip her into line.
6.27.2007 1:00am
William Eric Wolff (mail):
I assure you that the students at my daughter's (private) school have no free speech rights other than what the parents and staff allow them. And she is also free to worship as she chooses.

On the one hand, the daughter lacks 1st Amendment rights (to speech). On the other hand, she does not lack a 1st Amendment right (to worship). This isn't an "also" situation.

How can she have the right to worship as she chooses if she doesn't have the right to say what she chooses?
6.27.2007 12:26pm