In 2002, Joseph Frederick was a senior at a public high school in Juneau, Alaska. That year, the Olympic Torch procession passed through town and right down the road on which his school was located. The principal of his high school decided to allow the students to attend the procession, supervised by teachers. But Frederick himself hadn't gone to school that day. Apparently, he instead spent the morning working on a banner that read, "BONG HiTS 4 Jesus." Frederick arrived at the procession as it approached the school and took up a position across the street, joined by several friends. (Most students stood on the other side of the street, nearer the school.) As the procession passed, the banner was unfurled, and he and several others held it up, attempting to gain the attention of television cameras. For this Frederick was suspended from school. Alleging a violation of his free speech rights, Frederick sued, culminating in the Supreme Court's opinion that the government had the right to punish him for his speech.
The decision works a pretty large expansion in the power of the government to punish citizens for speech. Not only does it bestow upon schools the authority to punish any student who advocates political points of view in favor of drug legalization or drug usage, but it also refuses to limit its reach to circumstances where the student is actually in the school's custody or at a school-organized event, such as a football game.
As is typical of the new conservatives, the majority opinion is irrational, ends-oriented, and, ultimately, disingenuous. To begin with, the majority treats Frederick's speech as if he were at school when it was made, and thus under the less rigorous (though far from weak) First Amendment protections afforded to students at school under prior precedent:
At the outset, we reject Frederick’s argument that this is not a school speech case.... The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. For Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a.
For my part, I fail to see why Frederick may not claim he was not at school under these circumstances. This was not a school-organized football game or dance. It was the Olympic Torch procession, a very public--parade-like--affair that was not organized by the school nor attendance limited to students. (Indeed, the school would have had no authority to exclude any member of the public from the event, despite the majority's repeated (mis)characterization of the function as a "school event.") That the school "sanctioned" the affair, and allowed the students then in its custody and care to attend under its supervision, does not thereby make every member of the public in attendance "at school," even if that person normally attends the school. This aside, Roberts also had to misrepresent Frederick's actions even to make this feeble defense of school authority. Frederick did not "stand in the midst of his fellow students" at all. He stood across the street from the school and away from most all students. (Roberts seems to have noticed no tension in his statements both that Frederick stood "in the midst of his fellow students" and that he "directed his banner [across the street] toward the school, making it plainly visible to most students.") And certainly, the fact that the band and cheerleaders performed on the side of a public road that he happened to be on does not make him at school. I myself in high school attended a professional basketball game during which the high school dance squad performed at half-time. I did not consider myself to be at school, nor subject to its authority, by virtue of this fact. Of course, making Frederick be "at school" was a necessary precondition to upholding the government in the case. Had he not been "at school," it was uncontested that his speech would have been absolutely protected and unpunishable by the government.
In another ends-oriented endeavor, the majority hilariously stumbled its way to a conclusion about the meaning of Frederick's message. Although the dissent (and Frederick himself) characterized his banner as humorous nonsense, the majority found in it instead a message "promoting illegal drug use":
At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. ... 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.”
Absent this finding, the speech would not have been punishable, as it would not have negatively affected "the governmental interest in stopping student drug abuse," the factor that in the majority's view justified the school in circumscribing Frederick's free speech rights. (Notice that Jesus disappears entirely when one is forced to interpret the message seriously as advocacy or celebration of drug use. Jesus can sensibly remain only when Frederick's explanation of the message as nonsense is accepted.) But more troubling--or at least most illogical--is the conservative majority's apparent inability to recognize political speech even when they've just found it. One paragraph after the above quoted text, Roberts wrote:
Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14–16, this is plainly not a case about political debate over the criminalization of drug use or possession.What's disingenuous here is the majority's reliance on Frederick after already rejecting his own expressed intent. This catch-22 could have come straight from Joseph Heller: Frederick's banner is not "meaningless and funny" like he said but instead "advocates" drug use. But his banner does not advocate a political message because Frederick says it is meaningless. It is anything but clear to me how advocating illegal drug use--if one is inclined to conclude that is what he was doing--is not political speech. But this emphasizes the conservatives' dilemma in this case. They knew what result they wanted (government wins against citizen), but getting to that result required two contradictory findings along the way: (1) Frederick's banner was not meaningless (so as to enable it to invoke the government's interest in regulating student speech regarding drug use); and (2) Frederick's banner was meaningless (so as to remove the speech from the highly protected category of political speech implicated in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, which came out in favor of the students). So they did it, because they can.
So now not only does the Fourth Amendment disappear from the relentless pounding of the war on drugs, but so, too, does the First Amendment begin to erode.
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