Patterico's Pontifications

6/26/2007

No Supreme Court Justice Would Have Held the Principal Liable in the “Bong Hits 4 Jesus” Case

Filed under: Constitutional Law,Court Decisions,General,Law — Patterico @ 12:09 am

I offered no opinion on the “Bong Hits 4 Jesus” case in my bare-bones post yesterday, mainly because I hadn’t had the chance to read the opinion before leaving for work. Now that I have read the various opinions, I still have no view as to which one is most compelling. I think that to come to a sound legal conclusion on that topic would require one to be familiar with the underlying precedents, which I have not had time to re-read.

I think it’s important to recognize, though, that all nine Justices believed that the principal should not be held liable for taking the banner from the student. They simply disagree as to why.

All nine Justices agree that the principal’s actions took place in a school-related context. They all agree that the school context justifies a higher degree of governmental intrusion than is permissible in the usual First Amendment case. But they disagree as to the specific reasons that the principal’s actions should not result in liability.

The majority believes that the First Amendment simply is not implicated by speech that, in its view, advocates illegal drug use in a school context.

Justice Thomas believes that the First Amendment does not apply to speech by students in public schools.

Justices Alito and Kennedy concur with the majority but caution that the speech restrictions here are at the outer limit of what they would allow school principals to control.

Justice Breyer would find for the principal on the grounds of qualified immunity. His opinion is a little bizarre. He believes that the principal’s actions were reasonable regardless of the content of the speech on the banner — but points to the fact that the message is “irrelevant or inappropriate” as part of his explanation why he believes that the principal’s actions were reasonable.

The dissent thinks the message on the banner was ambiguous, and that the student just wanted to get on TV — but says:

[C]oncern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal’s decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed “Glaciers Melt!”

Justice Breyer, implicitly chiding Chief Justice Roberts for not seeking common ground in a narrow ruling, thus observes:

Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick ’s banner.

So: think what you like about the various opinions — but recognize that not one of the Justices would have held this principal liable for what she did.

30 Responses to “No Supreme Court Justice Would Have Held the Principal Liable in the “Bong Hits 4 Jesus” Case”

  1. For the record, the last sentence should read: “o: think what you like about the various opinions — but recognize that not one of the Justices would have held this principal liable for what she did.”

    Hoystory (de9da0)

  2. Dangit — pesky cut & paste!

    For the record, the last sentence should read: “So: think what you like about the various opinions — but recognize that not one of the Justices would have held this principal liable for what she did.”

    Hoystory (de9da0)

  3. Patterico, your point is a good one. And it’s understandiblte that nobody was jumping to award damages. Ultimately, what’s bothersome about this case for me is not the particular harm caused this particular plaintiff. It’s the precident. So denial of a damages award isn’t my concern.

    I tend to agree with justice Bryer that qualified immunity for the principal would have been appropriate. If anybody deserves qualified immunity for decisions regarding expression, it’s high school principals.

    It’s the larger precedent of this case regarding approval of speech restrictions in subjective categories of speech like “speech that appears to advocate illegal activity” that is disturbing.

    Originally I thought this kid was being clever, by combining both religious expression and political expression in one concise banner. As it turns out, he was (at least consciously, according to the opinion) only trying to attract TV cameras. Since he couldn’t provide a concise explanation of what his “speech” meant, the courts went with the principal’s interpretation.

    Of course, forcing people to explain their expression in terms that will fit it into protected speech categories isn’t particularly healthy, either.

    Phil (b355f6)

  4. It’s the larger precedent of this case regarding approval of speech restrictions in subjective categories of speech like “speech that appears to advocate illegal activity” that is disturbing.

    Agreed. And this would seem to tell us that a “Blow Jobs 4 Jesus” banner would be judged favorably, under a different standard, though it’s arguably more offensive than the Bong Hits sign.

    Since he couldn’t provide a concise explanation of what his “speech” meant, the courts went with the principal’s interpretation.

    According to the kid, it was supposed to be silly, wasn’t it? So it’s comedy. Bad comedy, mind you, but comedy nonetheless.

    If anybody deserves qualified immunity for decisions regarding expression, it’s high school principals.

    Heh.

    Pablo (99243e)

  5. Hoystory,

    Absolutely right. Thank you. I fixed it.

    Patterico (2a65a5)

  6. If the “business” of the school district i.e. “teaching” was disrupted by the display of the banner then it’s a problem that falls squarely in the lap of the principal to deal with in a manner of his choosing. The irony here is that the student (inadvertently I’m sure) became the “teacher” when he triggered a lesson in the limits of free speech.Too bad the banner wasn’t so moronic and instead addressed some issue of interest to the students districts voters. The court will have to deal with that one again. This decision seems to only ban idiocy.

    torabora (6a7521)

  7. All government officials in any context should be liable for infringing on any rights of anyone. The penalty, at minimum, should be the loss of job and benefits. Period. End of sentence.

    The notion that somehow “government schools” and those individuals that run them should be immune from the 1st (or any) Amendment is anathema to individual liberties. In fact, the very notion that our Republic is threatened by chaos in the schools is so irrational, and one more reason why they should be abolished. Don’t even get me started on compulsory attendance.

    “Stare decisis” – Latin for “the hell with them and the horse they rode in on, regardless of how illogical, irrational, immoral or blatantly against the intents of the Founders our prior decision may have been.”

    Mitch (55069c)

  8. Can you explain to those of us who are not legal scholars: If they all agreed that the principal should not be liable — but for different reasons — why were there three dissenters? Shouldn’t they have ruled in the principal’s favor?

    aunursa (f586f9)

  9. They were dissenting from the majority’s view that the speech was not protected by the First Amendment. But finding protection for the speech doesn’t resolve the qualified immunity issue — which I unfortunately don’t have time to explain right now.

    Patterico (2a65a5)

  10. This is comming from the same imperial court that says its okay to confiscate your stor so they can build a cassino i say those judges should be booted out

    krazy kagu (e22b83)

  11. “to come to a sound legal conclusion on that topic would require one to be familiar with the underlying precedents, which I have not had time to re-read.”

    If only the majority were as cautious. When you have studied the issue sufficiently please comment
    or speculate what the court will say when the
    first Calif. chemo patient arrested by the Feds has his/her case before them. Think the DEA will be emboldened by these cherry-pickers?

    Semanticleo (10a7bd)

  12. Do you honestly think the majority didn’t read the relevant opinions? They are summarized and repeatedly referenced in the majority opinion. Come on. You’re just choosing a hyperbolic way to say you disagree.

    Patterico (c2a59f)

  13. They may have read them but recklessly and with narrow eyes.

    Semanticleo (10a7bd)

  14. How closely do you think DEA read THIS precedent?

    Semanticleo (10a7bd)

  15. The Court was wrong to do a “content” analysis. Justice Thomas was the only one of the nine that kept his head on this. The kid’s banner could have read “Eat Sensibly, Exercise And Don’t Smoke” and it should not have made any difference. Students don’t get to pick the subject of discussion. They don’t get to discuss history in chemistry class or quote Hamlet when the subject is Othello. It was a purely time/place question and the time and place were the absolute fiefdom of the school which was entitled to control the “discussion” in any manner which rationally furthered a valid educational goal.

    nk (6061ba)

  16. P.S. Actually, Hamlet and Othello should be read together and any sixteen-year old who could point that out to his English teacher should get extra credit but I hope you get my point.

    nk (6061ba)

  17. P.P.S. The suspension, as a separate issue from taking away the banner, does trouble me. I think it was inappropriate. You don’t teach a kid by keeping him away from school. I wonder if the Court declined to rule in favor of the plaintiff on this because of some stupid federal rule I have heard of where the plaintiff in a civil rights action gets all his attorneys’ fees if he can prevail on just one question.

    nk (6061ba)

  18. The kid’s banner could have read “Eat Sensibly, Exercise And Don’t Smoke” and it should not have made any difference.

    NK, I actually think that the type of rule you’re describing — students are not allowed to have signs, period — is fine under current first amendment law. That’s why I don’t care about damages to the this particular kid — if the school had a rule saying “no signs,” that’s defensible.

    The school’s policy, apparently, was “no signs that appear to advocate drug use.” This carries an implicit message that the school can determine what a student says, not whether they talk or don’t talk.

    The distinction is between having a quiet school, and having a school where everyone says “I love Chairman Mao” or keeps their mouth shut. From the latter, it’s a very small step to requiring the student to join in the chant.

    Phil (427875)

  19. “some stupid federal rule I have heard of where the plaintiff in a civil rights action gets all his attorneys’ fees if he can prevail on just one question.”

    This is really the only protection available to people whose civil rights are violated, unless they’re rich. It only pays the plaintiffs’ attorneys if they pick legitimate civil rights claims, so it’s got the right incentives.

    Not to hijack the thread, but why is that “stupid”? Do you just hate plaintiffs’ attorneys and want to make sure they never get paid for the work they do? Or would you prefer that only people who could afford to spend tons of money on attorneys be able to enforce their civil rights and liberties?

    Phil (427875)

  20. Phil #19,

    Because it is often abused. Example: The plaintiff has a meritorious claim of $60.00 for a lost pair of pants. He sues for $64 million. It generates a settlement offer of $12,000.00. He wants more. He goes to trial. If he gets the $60.00, he gets all his attorneys’ fees. A lot of civil rights cases get settled not to avoid the actual damages but to avoid the attorneys’ fees.

    nk (6061ba)

  21. A lot of civil rights cases get settled not to avoid the actual damages but to avoid the attorneys’ fees.

    First, why would a plaintiff keep pursuing a case just to make his attorney more money, unless he’s already racked up substantially high attorneys fees and can’t afford to pay them?

    Second, trial is an all-or-nothing risk for the plaintiff. Sure, he could push on and maybe get more. But if he gets a big fat “$0.00″ verdict, he (or in reality usually, his attorney) is saddled with the full cost of bringing the case.

    Do you have any hard data on how these rules are “often abused”? There are a few cases of abuse in specific areas. But there are also civil rights lawyers out there slaving away on cases for years without getting paid, represting seriously wronged people who could never afford to hire an attorney.

    The pair of pants case notwithstanding (it’s my understanding that goofball represented himself, and I still think he was working for the tort reform lobby), plaintiffs don’t really go to trial to get attorney fees.

    Civil cases almost always go to trial because each party thinks they have a winning case, and thinks the other side is crazy to offer whatever they’re offering at settlement. That’s the only rational reason to go to trial (except in the case of big insurance defense, but that’s a whole other issue).

    If we didn’t have fee-shifting statutes, the courts would be useless to most civil rights plaintiffs. That’s not to say it’s a perfectly efficient system at all. In fact, the civil court system in general is no moneymaker — it’s simply a cost we bear as a society in order to have a mechanism to enforce individual rights.

    Phil (427875)

  22. If you’re counsel for the kid, is this how you want your oral argument to begin?

    MR. MERTZ: Mr. Chief Justice and may it please the Court: This is a case about free speech. It is not a case about drugs.
    CHIEF JUSTICE ROBERTS: It’s a case about money. Your client wants money from the principal personally for her actions in this case.
    MR. MERTZ: He does have a damages claim against the school district and the principal, but that’s by no means his chief object here. The overwhelming object is to assert his free speech —
    JUSTICE KENNEDY: Well, would you waive damages against this principal who has devoted her life to the school, and you’re seeking damages for her for this sophomoric sign that was held up?
    MR. MERTZ: We are certainly willing to negotiate a minimum settlement of damages. That is not the object here.

    The justices certainly were tipping their hands on the qualified immunity issue.

    (If you want to read the transcript, go to this link, click on “Argument Transcripts” and look for Morse v. Frederick.)

    Attila (Pillage Idiot) (68fd1f)

  23. Mitch wrote:

    All government officials in any context should be liable for infringing on any rights of anyone. The penalty, at minimum, should be the loss of job and benefits. Period. End of sentence.

    Now how on earth would you manage to live under that?

    Let’s take the Massachusetts homosexual marriage case as an example. It went to the state supreme court precisely because several government officials, acting within the restrictions of the law as it was written, denied marriage licenses to homosexual couples. The state supreme court said that was unconstitutional, which means, by your standards, every county registrar in Massachusetts who had ever denied a marriage license to a homosexual couple should be fired and lose all benefits.

    The plain fact is that, under your statement, no government official could ever deny anybody anything, because if there was even the remotest possibility that the person denied something might sue and win, said government official would find himself unemployed and without benefits.

    Dana (3e4784)

  24. Torabora #6:

    “Too bad the banner wasn’t so moronic and instead addressed some issue of interest to the students districts voters. The court will have to deal with that one again. This decision seems to only ban idiocy.

    My recollection of high school is that most of what we did was idiotic, so this decision should help high school principals.

    DRJ (2d5e62)

  25. Dana, they’d be liable the other way around too. Having there be a way, any way, for consequences to reach back can make a person think.

    Mitch was expressing the difference between private sector & public sector.

    A _private_ school principal could run into trouble if he takes the sign. Or if he _doesn’t_ take the sign. (It being _private_, it isn’t the same 1stA question anymore.) People who don’t like the way things turned out would exercise freedom of association. People who did like the way things turned out would also express freedom of association.

    Government is inherently a predatory monopoly however. It should always be treated as one.

    Al (b624ac)

  26. Government is inherently a predatory monopoly however. It should always be treated as one

    To paraphrase Heinlein – Be wary of strong drink. It can make you shoot at government employees… and miss.

    Mitch (f61519)

  27. NK #15: I completely agree with you but I feel like a dinosaur on this issue. American society is so enlightened and progressive that K-12 students are considered adults instead of the children they really are.

    DRJ (2d5e62)

  28. Banners as comedy –
    I wonder what the reaction would have been if the banner had read:

    NUKE GAY WHALES!

    Another Drew (8018ee)

  29. Having (just) read your summary, I’d have to give it to Thomas.

    The bottom line here is much the same as trying to argue for an end to truancy enforcement based on habeas corpus.

    Neo (cba5df)

  30. […] 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 about a […]

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


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