Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
When a reckless Supreme Court held last Monday in favor an Alaska high school principal who suspended a student for displaying his “BONG HiTS 4 JESUS” banner at a school event, they revealed a serious lack of legally consistent and scrutinous thought, and Chief Justice John Roberts in particular dropped the ball.
Is it permissible for a school to protect its students from speech that encourages them to use illegal drugs? This seems to be the central question the case has made people ask, and a sound argument can be made in either direction. But the Court failed to make either argument in a strong enough manner, resulting in precedent that is unclear, unfair and needlessly disruptive to the ongoing dialogue about freedom versus safety.
Reflecting on his first term in an interview with The Atlantic earlier this year, Roberts explained where he wants to take the Court in intelligent and convincing terms: the Court functions best and most legitimately, he argued, when it acts as a single, unified institution of critical thought, rather than as a collection of conflicting egos.
“I think that every justice should be worried about the Court acting as a Court and functioning as a Court,” Roberts said, “and they should all be worried, when they’re writing separately, about the effect on the Court as an institution… I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”
During his first term, it looked like Roberts was well on his way to building the kind of cooperative, reasonable Court he says is his priority – his first term boasted the longest string of unanimous decisions in recent history. But the term ended on more tumultuous ground, with a handful of controversial cases that split the court down the middle.
The decision in Morse v. Frederick – the “BONG HiTS 4 JESUS” case – represents an even deeper slide. Not only was the decision a split 5-to-4 vote, but five justices wrote opinions. More than half the Court found the issue so divisive, and the majority opinion so inadequately reasoned, that they had to chime in with their own two cents, severely weakening the holding’s strength as precedent and muddying its actual, real-world meaning.
The chief justice gets to choose, when he sides with the majority in a Court vote, which justice will write the opinion. Roberts explained in the Atlantic interview that he planned to assign opinions to those he believed would write in the most convincing manner, building unity on the Court and reducing the number of dissents and separate concurring opinions.
Roberts chose himself to write the majority opinion this time, and he clearly failed to write it convincingly. A distillation of his argument may be: schools have a right and responsibility to protect children entrusted to their care, and drug advocacy is one of the dangers from which they need protection. Roberts construes and defines Joseph Frederick’s nonsensical “bong hits” message as drug advocacy, writing, "Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs." He therefore finds in favor of the school for censoring Frederick.
Justice Clarence Thomas writes a separate concurrence, pointing out wisely, “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't.” But Thomas’ solution is that students should have no constitutional right to freedom of speech at all, because teachers were historically given all the rights of authority over children that parents have – and the First Amendment makes no promises to keep parents from shutting up their kids.
Another separate concurrence, written by Justice Samuel Alito and joined by Justice Anthony Kennedy, refutes Thomas’ ridiculous implication that because teachers have parental roles they are no longer agents of the State (and therefore subject to relative limits on their authority).
Alito writes further that, in agreeing with the Court that schools can restrict student speech that advocates drug use, he sees “such regulation as standing at the far reaches of what the First Amendment permits,” demanding that “the opinion does not endorse any further extension” of schools’ power to censor their students.
All of which could easily have been folded into the majority opinion, increasing the clarity of its impact, the narrow focus of its authority and the strength of its precedent. That Roberts refused or failed to do so in an opinion he authored himself is startling, because judicial restraint, narrowly tailored opinions and the Court’s unity of message have historically been top priorities for him.
Justice John Paul Stevens, in writing the dissent, has been quoted all across the news media for his accusation that the holding “does serious violence to the first Amendment,” but few have commented on his precise reasoning.
Stevens argues that, even accepting the idea that schools should be able to censor drug advocacy, there are no grounds to make that decision in the facts of this case. “t is one thing to restrict speech that advocates drug use,” he writes. “It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively – and not very reasonably – thinks is tantamount to express advocacy.”
This strikes at Roberts’ reasoning in ways it cannot logically withstand; his argument that the “bong hits” message amounts to drug advocacy is flimsily made, essentially shrugging his shoulders and admitting, “It’s not really clear what this kid is trying to say, but I can’t think of anything it could mean besides advocating drug use, so we’ll go with that.” His eagerness to attribute concrete meaning to a message he acknowledges himself is cryptic reveals serious weakness in the critical thinking behind the Court’s opinion, and a failure on Roberts’ part to live up to the standards of judicial restraint for which he is meant to be famed.
Indeed, as Stevens writes, “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.”
Stevens argues further that this weakness in logic is likely to frighten students. If the Court had made this decision in a case where the message was clear – if the banner said, “Bong hits at my house after the parade,” for example – the rule in turn would be clear, and students could still freely discuss drug-related issues without fear of reprisal. But the Court’s willingness to punish nonsense speech will leave many students unsure of where the boundaries of acceptable drug talk lay, and they may therefore choose to play it safe and not speak at all.
This kind of dampening affect – a wilting of the people’s impulse to express themselves when it counts – is exactly the impact a meaningful interpretation of the First Amendment seeks to prevent, in schools or otherwise. Given that part of the danger drugs can pose to students is their supposed ignorance surrounding the subject, stifling and intimidating their potential discussion of drug use is a huge mistake.
Roberts fails to address this danger in the Court’s opinion, except to point out that Frederick’s banner had no clear political or religious meaning, implying it is therefore not subject to the same freedom that issue-focused speech would supposedly have enjoyed.
In spite of all this, no reasonable person could argue that school officials don’t have a need to maintain discipline. In an opinion that both concurs and dissents from the majority in part, Justice Stephen Breyer writes, “What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing?”
But Breyer also acknowledges that protecting the school's principal with a new exception to the First Amendment is a tricky proposition, with little clarity offered by the facts or reasoning in this case – as an example, he asks, “What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain?”
The implication, Breyer writes, is simple: “[R]egardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason for us not to decide the issue unless we must.”
Breyer suggests the school principal be protected from Frederick’s lawsuit on the grounds of an existing qualified immunity that protects teachers and other government employees from civil rights lawsuits unless their behavior violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Since a student’s right to unfurl a big fat “bong hits” banner is not clearly established, the Court can protect the principal without fooling around with the First Amendment.
All that would leave to wrap up would be the student’s request for “injunctive relief,” that is, his right not to have been suspended. But by all accounts – even those included in the Roberts opinion – Frederick was being rowdy and belligerent anyway, so the suspension could be protected on those grounds.
Roberts replies in a footnote that this solution isn’t suggested anywhere in the court records for the case, but shouldn’t that be an easy fix? Doesn’t the Supreme Court remand cases back down to lower courts for “do-overs” all the time, often with specific suggestions just such as these?
Roberts doesn’t mention this obvious solution, which is alarming, since he wrote in a 2004 case that if a court can find "sufficient ground for deciding [a case,] the cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more -- counsels us to go no further."
In times of judicial doubt such as this case clearly provided (as again indicated by the number of separate opinions), the Court should settle the case based on the reasoning that has the least possible impact on future cases, and save the grand sweeping gestures of jurisprudential glory for situations that are clear cut and show issues of obvious, gross injustice.
Nothing about this case clearly presented the question Roberts answered in his opinion. His Court’s handling of this case weakens their legitimacy and their reputation, and I can only hope he holds himself to his own professed standards with more rigor in the future.
News Hawk- User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Xpress Online
Author: Sean Maher
Contact: seanmaher1@gmail.com
Copyright: Journalism Department - San Francisco State University
Website: "Bong Hits" Decision a Hazy Mistake
Is it permissible for a school to protect its students from speech that encourages them to use illegal drugs? This seems to be the central question the case has made people ask, and a sound argument can be made in either direction. But the Court failed to make either argument in a strong enough manner, resulting in precedent that is unclear, unfair and needlessly disruptive to the ongoing dialogue about freedom versus safety.
Reflecting on his first term in an interview with The Atlantic earlier this year, Roberts explained where he wants to take the Court in intelligent and convincing terms: the Court functions best and most legitimately, he argued, when it acts as a single, unified institution of critical thought, rather than as a collection of conflicting egos.
“I think that every justice should be worried about the Court acting as a Court and functioning as a Court,” Roberts said, “and they should all be worried, when they’re writing separately, about the effect on the Court as an institution… I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”
During his first term, it looked like Roberts was well on his way to building the kind of cooperative, reasonable Court he says is his priority – his first term boasted the longest string of unanimous decisions in recent history. But the term ended on more tumultuous ground, with a handful of controversial cases that split the court down the middle.
The decision in Morse v. Frederick – the “BONG HiTS 4 JESUS” case – represents an even deeper slide. Not only was the decision a split 5-to-4 vote, but five justices wrote opinions. More than half the Court found the issue so divisive, and the majority opinion so inadequately reasoned, that they had to chime in with their own two cents, severely weakening the holding’s strength as precedent and muddying its actual, real-world meaning.
The chief justice gets to choose, when he sides with the majority in a Court vote, which justice will write the opinion. Roberts explained in the Atlantic interview that he planned to assign opinions to those he believed would write in the most convincing manner, building unity on the Court and reducing the number of dissents and separate concurring opinions.
Roberts chose himself to write the majority opinion this time, and he clearly failed to write it convincingly. A distillation of his argument may be: schools have a right and responsibility to protect children entrusted to their care, and drug advocacy is one of the dangers from which they need protection. Roberts construes and defines Joseph Frederick’s nonsensical “bong hits” message as drug advocacy, writing, "Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs." He therefore finds in favor of the school for censoring Frederick.
Justice Clarence Thomas writes a separate concurrence, pointing out wisely, “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't.” But Thomas’ solution is that students should have no constitutional right to freedom of speech at all, because teachers were historically given all the rights of authority over children that parents have – and the First Amendment makes no promises to keep parents from shutting up their kids.
Another separate concurrence, written by Justice Samuel Alito and joined by Justice Anthony Kennedy, refutes Thomas’ ridiculous implication that because teachers have parental roles they are no longer agents of the State (and therefore subject to relative limits on their authority).
Alito writes further that, in agreeing with the Court that schools can restrict student speech that advocates drug use, he sees “such regulation as standing at the far reaches of what the First Amendment permits,” demanding that “the opinion does not endorse any further extension” of schools’ power to censor their students.
All of which could easily have been folded into the majority opinion, increasing the clarity of its impact, the narrow focus of its authority and the strength of its precedent. That Roberts refused or failed to do so in an opinion he authored himself is startling, because judicial restraint, narrowly tailored opinions and the Court’s unity of message have historically been top priorities for him.
Justice John Paul Stevens, in writing the dissent, has been quoted all across the news media for his accusation that the holding “does serious violence to the first Amendment,” but few have commented on his precise reasoning.
Stevens argues that, even accepting the idea that schools should be able to censor drug advocacy, there are no grounds to make that decision in the facts of this case. “t is one thing to restrict speech that advocates drug use,” he writes. “It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively – and not very reasonably – thinks is tantamount to express advocacy.”
This strikes at Roberts’ reasoning in ways it cannot logically withstand; his argument that the “bong hits” message amounts to drug advocacy is flimsily made, essentially shrugging his shoulders and admitting, “It’s not really clear what this kid is trying to say, but I can’t think of anything it could mean besides advocating drug use, so we’ll go with that.” His eagerness to attribute concrete meaning to a message he acknowledges himself is cryptic reveals serious weakness in the critical thinking behind the Court’s opinion, and a failure on Roberts’ part to live up to the standards of judicial restraint for which he is meant to be famed.
Indeed, as Stevens writes, “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.”
Stevens argues further that this weakness in logic is likely to frighten students. If the Court had made this decision in a case where the message was clear – if the banner said, “Bong hits at my house after the parade,” for example – the rule in turn would be clear, and students could still freely discuss drug-related issues without fear of reprisal. But the Court’s willingness to punish nonsense speech will leave many students unsure of where the boundaries of acceptable drug talk lay, and they may therefore choose to play it safe and not speak at all.
This kind of dampening affect – a wilting of the people’s impulse to express themselves when it counts – is exactly the impact a meaningful interpretation of the First Amendment seeks to prevent, in schools or otherwise. Given that part of the danger drugs can pose to students is their supposed ignorance surrounding the subject, stifling and intimidating their potential discussion of drug use is a huge mistake.
Roberts fails to address this danger in the Court’s opinion, except to point out that Frederick’s banner had no clear political or religious meaning, implying it is therefore not subject to the same freedom that issue-focused speech would supposedly have enjoyed.
In spite of all this, no reasonable person could argue that school officials don’t have a need to maintain discipline. In an opinion that both concurs and dissents from the majority in part, Justice Stephen Breyer writes, “What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing?”
But Breyer also acknowledges that protecting the school's principal with a new exception to the First Amendment is a tricky proposition, with little clarity offered by the facts or reasoning in this case – as an example, he asks, “What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain?”
The implication, Breyer writes, is simple: “[R]egardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason for us not to decide the issue unless we must.”
Breyer suggests the school principal be protected from Frederick’s lawsuit on the grounds of an existing qualified immunity that protects teachers and other government employees from civil rights lawsuits unless their behavior violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Since a student’s right to unfurl a big fat “bong hits” banner is not clearly established, the Court can protect the principal without fooling around with the First Amendment.
All that would leave to wrap up would be the student’s request for “injunctive relief,” that is, his right not to have been suspended. But by all accounts – even those included in the Roberts opinion – Frederick was being rowdy and belligerent anyway, so the suspension could be protected on those grounds.
Roberts replies in a footnote that this solution isn’t suggested anywhere in the court records for the case, but shouldn’t that be an easy fix? Doesn’t the Supreme Court remand cases back down to lower courts for “do-overs” all the time, often with specific suggestions just such as these?
Roberts doesn’t mention this obvious solution, which is alarming, since he wrote in a 2004 case that if a court can find "sufficient ground for deciding [a case,] the cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more -- counsels us to go no further."
In times of judicial doubt such as this case clearly provided (as again indicated by the number of separate opinions), the Court should settle the case based on the reasoning that has the least possible impact on future cases, and save the grand sweeping gestures of jurisprudential glory for situations that are clear cut and show issues of obvious, gross injustice.
Nothing about this case clearly presented the question Roberts answered in his opinion. His Court’s handling of this case weakens their legitimacy and their reputation, and I can only hope he holds himself to his own professed standards with more rigor in the future.
News Hawk- User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Xpress Online
Author: Sean Maher
Contact: seanmaher1@gmail.com
Copyright: Journalism Department - San Francisco State University
Website: "Bong Hits" Decision a Hazy Mistake
yeah, I guess so. but then maybe america has gotten too big to be totally free, you think? I mean we all love freedom, write poems and shit about it. but in absolute freedom there would be a cost, possibly a bigger one than the benefits of freedom.
