Free speech takes a 'BONG HiT"

Where’s Douglas Ginsburg when you need him? Ginsburg, you may remember, was the U.S. Supreme Court hopeful who had to withdraw his nomination in 1987 when it came out he had smoked marijuana while on the Harvard law faculty. Had he been confirmed, he might have been on the bench to talk some sense into his colleagues, who ruled 5-4 on Monday that school officials can prohibit student expression that makes even the most obscure, nonsensical reference to drugs.

This, of course, is the now-famous “BONG HiTS 4 JESUS” case in which Juneau, Alaska high school student Joseph Frederick was suspended in 2002 after he unfurled a banner with that phrase during an Olympic torch parade, off school property but during school hours. Led by Chief Justice John Roberts, the majority decided this was an acceptable limit on student speech. “The message of Frederick’s banner is cryptic,” Roberts wrote. “But Principal (Deborah) Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”

No, it’s not. It’s a silly nonsense phrase Frederick picked up from a snowboard and put on a banner in an obvious attempt for attention and TV time. Not even the court could figure out exactly what it meant. No serious observer could construe that the sign was literally advocating drug use “4 JESUS.” Come on. “It is one thing to restrict speech that advocates drug use,” wrote Justice John Paul Stevens in dissent. “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.” Or as Ginsburg might have asked his colleagues: What are you guys smoking? (Ironically, the stuffed-shirt majority included Justice Anthony Kennedy, who was Reagan’s successful nominee after Ginsburg’s bid went up in smoke.)

The majority justices took pains to say it’s a narrow ruling that won’t restrict speech on political or social issues. But often the lines aren’t so clear cut. Isn’t drug policy a political and social issue? Can a student on a debate team argue for changes in drug law or policy without being accused of advocating drug use? This “ham-handed, categorical approach," Stevens wrote, "is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

Despite the majority’s denials, this decision could broaden schools’ power to determine what kinds of student expression are in conflict with their “educational mission” and can be banned. That’s why organizations identified with the “religious right” as well as civil liberties groups took up Frederick’s cause. In Stevens’ words: “Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views.”