Freedom Takes a Hit
The Supreme Court batters the First Amendment.
Thursday, June 28, 2007
Here’s the scene: The Olympic torch is being carried through town on its way to the winter games. The city has arranged an event to celebrate the occasion— a parade, which happens to pass in front of the high school. A couple of funny-boy students, knowing that there will be crowds of spectators and TV cameras and hoping to show everyone how clever they are, stage a prank: They unfurl a banner along the parade route that says “Bong Hits 4 Jesus.”
There were many ways people reacted to this stunt. Some with deep religious convictions were offended, and those who believe marijuana is evil were probably outraged. I’d bet the jokers’ girlfriends were embarrassed, some of their straight-arrow classmates disgusted, and their teachers ashamed and angry. And of course some kids thought it was funny.
I can’t believe anyone would look at that banner and think: “I want to take drugs.” But last week, the United States Supreme Court delivered a ruling on this high school prank, arguing that the goofball banner promoted drug use and that the students that displayed it were therefore not protected by the First Amendment.
“Teachers commanded, and students obeyed.”
Joseph Frederick, the 17-year-old Juneau, Alaska senior who masterminded the Bong Hits 4 Jesus prank, must have known that it might get him in trouble. But when his principal suspended him from classes for five days, he sued the high school for violating what he called his “inalienable right to free speech.” He lost the case in district court, appealed to the 9th Circuit Court, and prevailed.
Judge Andrew Kleinfeld wrote in the appeals court’s unanimous decision: “‘Bong Hits 4 Jesus’ may be funny, stupid, or insulting, depending on one’s point of view, but it is not plainly offensive.”
That’s when Kenneth Starr, the pit-bull Whitewater prosecutor who almost hounded President Bill Clinton out of office, stepped in. Starr offered to take the case to the nation’s highest court on behalf of the Juneau School District, for free. He argued that “Bong Hits 4 Jesus” was not the kind of free speech the First Amendment was designed to protect, and that the school was right to discipline young Joseph Frederick for displaying those words. The five conservative justices who now hold sway on the Supreme Court agreed.
In support of the decision, Justice Clarence Thomas delivered a chilling justification for the idea that free speech, in this case, needed to give way to the school’s mandate to control students’ behavior: “[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order… ”
Justice John Paul Stevens, in a dissenting opinion, replied: “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding— indeed, lauding— a school’s decision to punish Frederick for expressing a view with which it disagreed.”
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Journalists are touchy when it comes to the First Amendment. When anyone— even a wise-ass high school senior— gets in trouble for something they say or write, we get nervous. Buck Roggeman, a former reporter who holds a masters degree in journalism from USC, respects the right of free speech as much as any newspaperman.
As a journalism teacher at Pacific Grove High School, he also understands the need for school administrators to maintain order.
“In a high school environment,” Roggeman says, “it’s essential to keep things running smoothly, to create an atmosphere where education is allowed to happen. At the same time, some of the most dynamic teaching moments come when students approach the edge.
“Anyone who spends any time with kids knows that they will occasionally push at the boundaries and pull pranks like this just to get a rise out of people.”
Roggeman won’t take a position on the Bong Hits for Jesus case— except to say that it never should have reached the Supreme Court in the first place. “It seems ludicrous that the First Amendment is being tested over something as trivial as this,” he says.
A self-described political moderate (“Maybe I do lean a little to the left,” he says) Roggeman points out that back when he was in high school, in the ‘70s, irreverent hijinx like the Bong Hits banner “would have been completely ignored.”
In his role as faculty advisor to the PG High student newspaper, he says, he will not feel constrained by the stricter limits the Court has put on students’ ability to spout off. “But I certainly see that people everywhere have become very, very careful about what they say.
“I don’t want to sound paranoid, but I feel like maybe we live in a more watchful society.” He doesn’t sound paranoid to me, but he does sound a little bit scared.