Patterico's Pontifications

6/25/2007

Bong Hits 4 Jesus Kid Loses

Filed under: General — Patterico @ 6:43 am

The Bong Hits 4 Jesus kid lost in the Supreme Court today. Stay tuned to How Appealing for the link to the opinion.

51 Responses to “Bong Hits 4 Jesus Kid Loses”

  1. I’m all about free speech, but I’ll have to agree with the school in this matter. School is school, and the kid was just doing it for the shock factor.

    fngJD (49df46)

  2. So student speech can be curtailed, constitutionally, even off=campus?

    I guess the DEA will be challenging medical marijuana states with more vigor. This SCOTUS,
    like GWB forever tarnishes the former and future
    members of their class.

    Semanticleo (10a7bd)

  3. So student speech can be curtailed, constitutionally, even off=campus?

    Well, when it’s a school-sponsored event, then he’s not “off campus”. He’s there as a class/school function, and thus his behavior must conform with their policies.

    And I would love to hear your reasoning as to why a school doesn’t have the right to curtail drug-promoting speach.

    Nice Try Semantic. You make it sound like he was at home with his sign…

    Scott Jacobs (90eabe)

  4. School is school, and the kid was just doing it for the shock factor.

    Except that it wasn’t at school. And it wasn’t a school sponsored event.

    Aside from that, I’d agree. But I think they got this one wrong.

    Pablo (99243e)

  5. according to the ap article, the court ruled 5-4 that speech supporting drug use can be censored. ok, five justices got down to “speech we agree with is protected, speech we disagree with is not.” if these nine justices had heard the tinker/des moines case, it would have been 5-4 that speech tending to compromise our war effort is unprotected. this decision comes at a cost, but….

    it won’t hurt mary jane, all nine justices acting together can’t kill her, like john barleycorn, she is immortal.

    assistant devil's advocate (3dbb4e)

  6. The majority’s antipathy for individual rights notwithstanding, I wonder how it would have gone
    if the sign read “vaporizer hits for Jesus”.

    Same smell.

    Semanticleo (10a7bd)

  7. Bleah. THe suspension was a stretch, and I think this decision was, too. It’s not quite ‘whole swaths of law imagined into existence’ bad, but the drug promotion bit is a bit weak, I think.

    David N. Scott (71e316)

  8. If his sign had said “Bong Hits for Allah” he would still be in hiding.

    Ms. Judged (becd1d)

  9. Pablo said: Except that it wasn’t at school. And it wasn’t a school sponsored event.

    Even though Frederick was standing on a public sidewalk, school officials argue that he and other students were participating in a school-sponsored event. They had been let out of classes and were accompanied by their teachers.

    If you are on a ‘field trip’ with teachers, you represent the school. I wasn’t even allowed to wear a hat when we went on school sponsored events. Arguing this case is a waste of taxpayer money. It’s not like he was unfurling a banner that said ‘Free Tibet’ or ‘Save the Polar Bears’. He was trying to see how far he could push this and he got what he wanted. I think he should face some sort of penalty for wasting everyone’s time and money.

    fngJD (49df46)

  10. If you are on a ‘field trip’ with teachers, you represent the school.

    But the kid wasn’t on a field trip. He’d been playing hooky.

    And it wasn’t a school sponsored event. They’d dismissed school so that the kids could see the Olympic torch pass by. Here’s a bit from the oral argument:

    MR. MERTZ: A few of the student — a few of the relay runners were from the school and had been allowed to skip school because of that, and the pep band played as it went by. I do not believe that made the torch relay a school event. The best that can be said for them is that they let the students watch it with the concurrence of individual teachers, and that that attendance was a school sanctioned attendance. Now whether that allows them to then engage in this kind of punishment for speech by a student who was not even among those released, who is standing —

    JUSTICE GINSBURG: Now you said that in your brief, and I couldn’t understand that somehow you got mileage out of his being truant that morning. Would the case have come out differently, would you be making any different argument if he got to school on time and was released with the rest of them? Does the case turn on the fact that he was late to school that day?

    MR. MERTZ: We believe it would be a closer question, but the fact that he was not there in school today, and intentionally was not there today, turns this into a pure free speech case where you have a citizen in a public place in a public event who was not acting as a student.

    JUSTICE GINSBURG: So he’s not a school child, he would be playing hooky?

    MR. MERTZ: Because he was playing hooky because he chose not to be there, because he was not part of the class.

    JUSTICE GINSBURG: Even though the law required him to be there?

    MR. MERTZ: That’s right.

    JUSTICE SCALIA: He wasn’t playing hooky. He showed up late, that’s all, right? I mean, he actually came and joined his classmates at an event that he knew was an event that the school told the classes to go to.

    MR. MERTZ: He joined —

    JUSTICE SCALIA: As far as I’m concerned, he just showed up late.

    MR. MERTZ: He joined a public crowd on a private side — public sidewalk in front of private homes. The crowd happened to have some other students in that school there.

    Of course, there’s a couple of things wrong here. One is that the kid was 18 and had the legal authority to determine whether he’d go to school or not. Two, if the kid had been hit by a car, do you think they’d be arguing that they had control of him?

    Pablo (99243e)

  11. Two, if the kid had been hit by a car, do you think they’d be arguing that they had control of him

    No, but his parents and he would have…

    Scott Jacobs (90eabe)

  12. Sorry, but the title should be “USSC Blows Another One”…

    mojo (8096f2)

  13. No, but his parents and he would have…

    And if they tried it, the school’s argument that he wasn’t would have been precisely what his was: correct.

    Pablo (99243e)

  14. I see your point, Pablo. However, maybe he still should have been suspended for skipping school. How can they argue a suspension when he had been skipping?

    fngJD (1b5735)

  15. Pablo: not a single one of the Justices, including the dissenters, agreed with your interpretation that it wasn’t at school or at a school-sponsored event.

    I pretty much think all of the opinions are ridiculous. The dissent is straining to misinterpret the sign, the majority is creating a rule that basically nullifies free speech rights for students, Justice Thomas wants to abolish free speech rights for students, Justice Breyer wants the case to just go away, and Justice Alito thinks there should be a drug-related-speech exception — and *only* that exception — to first amendment rights for students.

    Blech.

    aphrael (e0cdc9)

  16. So, genius aphrael, what rule would you impose that isn’t “ridiculous”?

    PatHMV (7f2300)

  17. Pat: if I could have gotten past the dissent’s bizarre assertion that “bong hits 4 jesus” isn’t a celebration or endorsement of drug use, I would probably be closest to their line: “regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of the other students”.

    But, then again, I’m just about the closest thing you can find to a first amendment absolutist.

    aphrael (e0cdc9)

  18. fngJD,

    However, maybe he still should have been suspended for skipping school.

    Sure. And that’s probably what they should have done. Punishing an adult for off campus speech is bad mojo.

    aphrael,

    Blech.

    Indeed.

    Pablo (99243e)

  19. Also, PatHMV: do you disagree with my characterization of any of the decisions? Which, and why?

    aphrael (e0cdc9)

  20. I’m holding off on reading the decision because I know it will irritate me.

    Here’s why: “bong hits for jesus” is clearly (1) religious and (2) political speech. Basically, the two kinds of speech I think are most revered generally under the American first amendment doctrine.

    The sign was an artistically creative statement intended to make people uncomfortable by challenging their religious and political views.

    This kid was disciplined because people were were afraid other kids would be influenced into adopting the political and religious views he expressed.

    That’s the only reason he was disciplined. It wasn’t advocating violence, it was in no way threatening.

    Bottom line, this ruling OKs the two absolutely worst kinds of speech censorship there are, at least based on what I value about first amendment protection of expression.

    What’s really impressive is, this kid provoked these people into doing it. He knew exactly what buttons to push to show how little freedom of religious/political speech is actually valued in todays world, and he did it. And they fell for it.

    That’s what will make him famous for more than just 15 minutes. He’s now in first amendment case books for the next century as a black mark on today’s culture.

    Phil (427875)

  21. Phil, you think it’s impressive that the kid found a way to provoke people? You have a pretty low standard of what impresses you. I’ve never met a ten-year-old who didn’t have at least this much talent at provoking people.

    It would be nice if people grew out of that childishness by age 18, but of course that’s pretty rare.

    Doc Rampage (47be8d)

  22. I think they held their noses and gave the local school boards the right to discipline students

    SteveG (0fea5c)

  23. Aphrael,

    I agree with you, and I think the key to this decision was the student’s inability to show his banner had any plausible free speech meaning. From the School Superintendent’s written findings, quoted with approval in the majority opinion:

    “The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick’s] speech was not political.

    Pablo,

    I agree it’s easier to decide this case if Frederick was not attending a school-sponsored event. However, your quote from oral argument isn’t evidence and, as the Supreme Court noted, even the 9th Circuit held “that Frederick acted during a ‘school-authorized activit[y],’ … 439 F. 3d 1114, 1118, 1121–1123 (2006).” Thus, every school official and every court agreed this was a school-sponsored event.

    DRJ (2d5e62)

  24. DRJ, Scalia addressed that and the logic is specious, IMHO.

    As far as I’m concerned, he just showed up late.

    …to a public sidewalk and an Olympic event, not the school campus. The fact that they let the kids go to it doesn’t make it a “school sanctioned” event. It makes it something they let the kids go to. If it were a trip to McDonald’s, the fact that he also shows up at McDonald’s wouldn’t seem to place him under school authority. Is there any precedent on this question, that you know of?

    Pablo (99243e)

  25. The issue I have with this is that the majority thinks it can draw a clear line between speech that advocates drug use and speech that advocates the repeal of drug laws. The arguments for both could sound quite similar – pleasureable effects, its harmfulness relative to legal substances, medical uses – especially when put forth by high school students.

    The majority has somehow determined that “BONG HiTS 4 JESUS” is advocating drug use, not the repeal of drug laws. I have little idea what the sign means, but apparently neither really do the justices as they don’t even bother to interpret the “4 JESUS” part, stopping with the obvious observation that “BONG HiTS” refers to marijuana.

    Nels Nelson (4a3ac4)

  26. Pablo,

    In deciding this case, every court found that the students were released to watch the relay runners carry the Olympic torch. The students were told where they could stand – in front of the school or across the street – and there were teachers and administrators present to supervise. The fact that Frederick was late didn’t release him from school supervision once he arrived. If that were the case, tardy students would not be subject to school authority on the days they arrived late.

    And there is precedent that is right on point: This decision.

    DRJ (2d5e62)

  27. Patterico;

    Is there NOTHING in these comments which inspires
    you to take a position?

    Semanticleo (10a7bd)

  28. Nels,

    I agree in spirit with your comment. I think that’s why so much emphasis was put on the student’s inability to articulate any reason for his banner. Basically, if its meaning was unclear to him as an author or sponsor, then it probably didn’t have a meaning.

    DRJ (2d5e62)

  29. Doc Rampage wrote at 6/25/2007 @ 3:11 pm:

    …I’ve never met a ten-year-old who didn’t have at least this much talent at provoking people.

    It would be nice if people grew out of that childishness by age 18, but of course that’s pretty rare.

    So, if a more legally savvy youngster holds a sign with the unambiguously political message “Reverse Bong Hits 4 Jesus“, what result?

    Confession: I stole the sign concept from comments on the case over at Volokh Conspiracy.

    Occasional Reader (3b67fe)

  30. The fact that Frederick was late didn’t release him from school supervision once he arrived. If that were the case, tardy students would not be subject to school authority on the days they arrived late.

    But Frederick didn’t make it to school. He was on a public sidewalk without ever having been on campus. So, instead of kids who were late, it would seem to be more appropriate to saying that kids would not be subject to school authority on days they never went to school, which seems about right.

    And there is precedent that is right on point: This decision.

    Previous precedent, of course.
    Semanticleo,

    Is there NOTHING in these comments which inspires
    you to take a position?

    Has it occurred to you that he might be busy?

    Pablo (99243e)

  31. He may be. He may not be. On some issues he is reticent to take a position as the bare-bones post
    indicates. Otherwise, why post it?

    Semanticleo (10a7bd)

  32. #29 –
    He attended a school approved function, in the specific spot approved for student participation: He WAS at school, just as much as if he had been standing on the campus proper.

    This attempt to nit-pick his submission to school authority, like “it depends what the meaning of is, is”, just leads to further public dissatisfaction with (and utter contempt for) the legal profession.

    Another Drew (8018ee)

  33. Occasional Reader,

    I think “Reverse Bong Hits 4 Jesus” might be protected speech if the student could provide a plausible explanation, such as: “I was making a statement about the limitations placed on student speech.” One possible construction of this Court’s holding is that, if a student is unable to articulate the meaning of his/her message, it may not be protected speech.

    DRJ (2d5e62)

  34. This is the first time I have ever disagreed with Scalia. What a fascist. I’m seeing to it he is going directly to hell for infringing upon this poor child’s constitutional right of free speech advocacy for my partaking of the herbs of God’s creation.

    Jesus (d5b6de)

  35. This attempt to nit-pick his submission to school authority, like “it depends what the meaning of is, is”, just leads to further public dissatisfaction with (and utter contempt for) the legal profession.

    No, it doesn’t. He was an adult on a public sidewalk. Directing students to stand on a public sidewalk doesn’t make the sidewalk school. Was anyone who walked on that sidewalk under school authority?

    Jesus, suppose the sign said “Blow Jobs 4 Jesus”. Now what?

    Pablo (99243e)

  36. DRJ wrote at 6/25/2007 @ 5:18 pm:

    I think “Reverse Bong Hits 4 Jesus” might be protected speech if the student could provide a plausible explanation, such as: “I was making a statement about the limitations placed on student speech.”

    Let’s hope it would be protected. The majority looks perilously close to letting school authorities punish any student speech anywhere that they don’t like, just because they don’t like it. It appears to entirely undercut the Tinker standard with yet another “drug exception” to the Bill of Rights. Either that or SCOTUS presumes that any unapproved statement on drug policy is ipso facto disruptive enough to fall outside Tinker.

    Occasional Reader (ecceeb)

  37. Pablo: No, he was not an “adult” on a public sidewalk. He was a student participating in a school-authorized activity, in the manner approved for student participation (less the offensive phraeseology of the banner). His actual chronological age at the time of the parade is inconsequential because he was a student, enrolled, and active, in said school.

    In light of the further activities of the “student” in the years since his graduation, I would posit that he has yet to attain “adulthood”.

    Your position in this is untenable, and is not supportable by the law: SCOTUS has spoken!

    Another Drew (8018ee)

  38. His actual chronological age at the time of the parade is inconsequential because he was a student, enrolled, and active, in said school.

    Except that he wasn’t IN said school. He was on a public sidewalk.

    Was anyone who happened to be on that sidewalk subject to school authority? Was he subject to school authority on any and every public sidewalk?

    Pablo (99243e)

  39. Oh, and having reached the age of majority, he had the legal authority to excuse himself from school.

    Pablo (99243e)

  40. Occasional Reader, at #28: I think it’s fairly clear from Justice Alito’s concurrence that a sign which said “Reverse Bong Hits 4 Jesus” would be protected speech in his view. That wouldn’t be advocating drug use; it would be advocating a change in public policy.

    DRJ, at 32: I think that standard would lead to the bizarre result that identical signs could be protected and unprotected speech depending on whether or not the student holding the sign was sufficiently articulate. As a matter of legal principle, that can’t be right.

    Occasional Reader, at #35: your concern about the majority is essentially the concern which Justice Alito was trying to assuage with his concurrence.

    aphrael (9e8ccd)

  41. This was a non-case. The only thing that made it colorable as a First Amendment issue was the fact that it involved a public school. In my opinion the principal acted in loco parentis and the kid should have been no more able to sue her than to sue his own father if it had been his father who had taken the banner away from him and grounded him for a week. If this case is anything it is one more sad statement about our public school system.

    nk (0ebe4a)

  42. Occasional Reader, at #28: I think it’s fairly clear from Justice Alito’s concurrence that a sign which said “Reverse Bong Hits 4 Jesus” would be protected speech in his view.

    And yet, if he’d unfurled a banner like that in the school cafeteria, they’d have been within their purview to remove it.

    Pablo (99243e)

  43. Aphrael,

    I agree to the extent that whether the student has a subjective understanding of the speech is not determinative of whether it is protected speech. But a student’s ability to articulate the point of the speech seems of interest to the Court, and I think the reason is that school officials shouldn’t have to divine a student’s message if the student doesn’t even know what it is.

    DRJ (2d5e62)

  44. Pablo,

    I understand your concerns about off-campus events but do you also object to actions by school personnel that restrict speech on-campus?

    DRJ (2d5e62)

  45. I support the specific action of the principle in this case based on the following:

    Most schools today have fences around them. They keep the kids in and they keep outsiders out. While we all might like to revisit the good old days, when nobody locked their doors, most of us recognize that for safety, school children are segregated away from the general public for a degree of protection.

    When the school ‘appropriated’ a portion of the sidewalk for the students to stand and watch the torch go by, Frederick went and stood there. He was ‘entitled’ to stand there only in so far as he was a student. If he would have been any other adult, he would have been directed away from the students to maintain the ‘segregation for safety’ normally made possible by the fences.

    If he, as an adult who had the right to take himself out of school, would have followed through on that, he would have unfurled his sign in the area reserved for non-students, in which case he would have been entitled to use his public space for free speech, same as any other non-student adult/parade watcher.

    If I claim the privileges of group membership, I must abide by the rules that govern the conduct of that group.

    Adriane (04cade)

  46. I understand your concerns about off-campus events but do you also object to actions by school personnel that restrict speech on-campus?

    Not nearly to this degree. Had Franklin unfurled the banner in the cafeteria or even in the stands at a football game, the school should have the authority to maintain order and would be justified in taking it away and chastising him for pulling an intentionally disruptive stunt.

    Pablo (99243e)

  47. Regarding the Supreme Court Limiting Student Free-Speech Rights

    This is the most frightening thing I have ever seen in the news. We saw our rights trampled on today. We have witnessed the death of our first amendment at the hands of those sworn to protect it. Desecrated, spat upon at the request of a high school principle. I am sickened by this. Now I know for certain that we are loosing our country. Everything we stand for is at risk. When we loose the right to question the law of the land at a public institution we have truly lost freedom that our ancestors fought for. Lady liberty lies on her death bed while the Fatherland waits patiently. Perhaps there may still be time? There may still be time to save our freedom.

    SEND YOUR SUPREME COURT A MESSAGE TODAY!

    I CHALLENGE EVERY HIGH SCHOOL STUDENT in this country to make a copy of this banner and display it at your school as soon as possible. And remember, when they come to tear it down and trample on your Bill of Rights, this time it IS A POLITICAL STATEMENT. Don’t let your freedom die this way.

    Please post and e-mail this to everyone that can make a difference. Our freedom is in your hands kids.

    David Bennett (c47ffe)

  48. No, it doesn’t. He was an adult on a public sidewalk. Directing students to stand on a public sidewalk doesn’t make the sidewalk school. Was anyone who walked on that sidewalk under school authority?

    No, he wasn’t an adult on a private sidewalk he was a student on a city sidewalk (the same city that owns the high school). The sidewalk that he was on is attached to the school VIA a walkover bypass on the second floor of the High School and technically on school property given that he was in between the lot where the teachers park and the street.

    The kid did this to garner attention to himself and is still reveling in it, period. Every court that looked at it agreed that he was at a school sanctioned event. Again, the sidewalk in question is about a 50′ walk over the footbridge that comes out of the second floor of the high school and could very easily be argued to be school property. I pass it nearly every day.

    The school itself is the most liberal school that I’ve ever seen and if they really wanted to squelch free speech they would have removed the “gay awareness day” signs that were plastered all over the inside of the school when I took my daughter down there to take a test. Juneau is the most liberal city in the whole state, run by liberals and the principle is a liberal so there’s no right-wing-nut argument anywhere to be had.

    Peace,
    EJ

    Juneaublog.com (bde302)

  49. No, he wasn’t an adult on a private sidewalk he was a student on a city sidewalk (the same city that owns the high school). The sidewalk that he was on is attached to the school VIA a walkover bypass on the second floor of the High School and technically on school property given that he was in between the lot where the teachers park and the street.

    You’ll note that I said “public sidewalk” and you’ll also that one can be both an adult and a student, which describes Franklin at the time quite nicely. As for the rest, it sure looks like he’s standing in front of a private home, doesn’t it? Not school property technically or in any other fashion. But maybe it is a teacher parking lot with a bay window and a carport…

    Pablo (99243e)

  50. Occasional, that is about the most odd non-sequitur I’ve ever seen to one of my comments.

    Doc Rampage (47be8d)

  51. […] posts are here, here, here, here and here and, as noted at the last link, there are plans to make this incident into a movie […]

    Patterico's Pontifications » “Bong Hits 4 Jesus” Student Nets $45,000 (ad4391)


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