Tuesday, June 26, 2007


Yesterday in Morse v. Frederick, Big Chief Roberts had this to say about ‘bong hits’:

Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one …

Some others are “that the sign advocated the use of illegal drugs” (emphasis mine) and that “the phrase could be viewed as celebrating drug use.” I count three interpretations here, though Roberts counts only two. Surely, there are more than one.

‘Bong hits’ may or may not be advocating the use of illicit drugs. If it were, it might not be protected speech, since encouraging kids to break the law is a no-no. So what does it take to advocate something? As it turns out, Roberts has something to say about advocacy in Power v. Money on the very same day:

… [A]n ad is the functional equivalent of express advocacy only if the ad is susceptible of no [other] reasonable interpretation ….

‘Bong hits’ is an ad for Joseph Frederick. It says, ‘Look at me, I'm a wild teen rebel.’ And it worked, because I now know who he is, yet I am no more likely to smoke a plant or to worship a carpenter. The only difference between 'bong hits' and a thinly-disguised political smear is that Frederick is only a whore for attention, not for power and money and the occasional sexual favor.

In his dissent, Justice Stevens points out Roberts' hypocrisy with a satisfyingly large bitch-slap:

… THE CHIEF JUSTICE announces today … that when the “First Amendment is implicated, the tie goes to the speaker,” … and that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy … we give the benefit of the doubt to speech, not censorship” …

However, this isn't even a tie-goes-to-the-runner situation. It is up to the censor (the power-wielder) to demonstrate that the danger of a speech justifies its suppression, not the speaker to prove its meaning, harmless or otherwise. Without evidence that Frederick was advocating drug use, nor evidence that anyone would have been persuaded to do anything illegal, there's no argument supporting denial of First Amendment rights. As best as Stevens could tell, the only reason the Court could find for supporting Frederick's suspension was that it was now up to school officials across the country to interpret the Constitution:

… it is hard to understand why the Court would so blithely defer to the judgment of a single school principal.

Finally, one could argue (especially, but not exclusively, if one is a follower of any of a number of backwards and repressive religions) that some “social events,” such as prom, are school-sanctioned advocacy of underage sex. Couple that with an official denouncement of safe-sex practices, and suddenly a bong hit should seem a small worry to those concerned with high-school students' well-being.