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Bong Hits Case Goes Up in Smoke

With the Supreme Court wrapping up its term this week, it issued five decisions today, including one on what may well have been the most blogged case of the year, Morse v. Frederick, aka "Bong Hits 4 Jesus." As Associated Press reports, the Court ruled 5-4 against the high school student who claimed a First Amendment right to display a banner bearing those now famous words.

Chief Justice Roberts wrote the the Court's opinion, joined by Justices Scalia, Kennedy, Thomas and Alito. Justices Stevens, Souter and Ginsburg dissented, and Justice Breyer concurred in part and dissented in part. For the majority, Roberts wrote:

"The message on Frederick's banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. to still others, it probably means nothing at all. ... But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

The case is not about political debate, Roberts said, but about "whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use."

At SCOTUSBlog,  Marty Lederman's "quick preliminary notes" call Morse "a very limited holding" in which Justice Alito's concurrence, joined by Justice Kennedy, is controlling. Lederman cites this passage written by Alito:

"I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

But at the National Review blog phi beta cons, David French sums up the opinion as an example of that old saw, "bad facts make bad law." He sees the ruling not as limited but as potentially expansive, in that the Court's reasoning about drug-related speech could apply to all sorts of unpopular speech. He explains:

"Virtually all restrictive speech policies ... are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations.  All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics."

We'll give dissenting Justice Stevens the final say, since to me his words make the most sense:

"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. ... In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular."

Posted by Robert J. Ambrogi on June 25, 2007 at 05:23 PM | Permalink | Comments (0)


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