"Bong Hits 4 Jesus": Incitement to Imminent Lawless Action

Or so says Chief Justice Roberts in Morse v. Frederick. Justice Stevens' dissent is wonderfully mocking:

It is also perfectly clear that “promoting illegal drug use,” ante, at 14, comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U. S., at 447. . . . No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York, 268 U. S. 652, 673 (1925) (dissenting opinion). . . .

More . . .

. . . To the extent the Court independently finds that “BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. Ante,at 7 (positing that the banner might mean, alternatively, “ ‘[Take] bong hits,’ ” “ ‘bong hits [are a good thing],’ ” or “ ‘[we take] bong hits’ ”). Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything.7 But most importantly, it takes real imagination to read a “cryptic” message (the Court’s characterization, not mine, see ibid., at 6) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. 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.

And then Stevens takes a shot at Roberts' blatant hypocrisy:

But if advocacy could somehow be wedged into Frederick’s obtuse reference to marijuana, that advocacy was at best subtle and ambiguous. <b.There is abundant precedent, including another opinion The Chief Justice announces today, for the proposition that when the “ First Amendment is implicated, the tie goes to the speaker,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. ___ (2007) (slip op., at 21) 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,” post, at 29. If this were a close case, the tie would have to go to Frederick’s speech, not to the principal’s strained reading of his quixotic message.

IOKIYAR now has constitutional validity, thanks to Chief Justice Roberts.

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    Hypo-crazy (5.00 / 1) (#5)
    by Con Crisis on Mon Jun 25, 2007 at 01:11:26 PM EST
    The hypocrisy is really quite amazing.  Has there ever been a day where the Court released two opinions that are absolutely unreconcilable with each other?

    How True (none / 0) (#13)
    by Fritz on Mon Jun 25, 2007 at 02:39:09 PM EST
    Teenagers can advocate drug usage but adults should not hear political advocacy about politicians.  That sums it up, the minority in both decisions details hypocrisy.

    The Teen advocated drug usage like (none / 0) (#14)
    by Big Tent Democrat on Mon Jun 25, 2007 at 03:05:00 PM EST
    the adults advocated bombing abortion clinics.

    The teen advocated "Bong hits for Jesus."

    What in the hell is that?

    Honestly, are you not seeing that if you can prohibit jabberwocky like that, then you can prohibit just about anything.


    Agree (none / 0) (#15)
    by Fritz on Mon Jun 25, 2007 at 03:19:33 PM EST
    Like Thomas, I would dump Tinker.   High-school administration has a greater compelling interest than one wise ass.  The Court limited it to drug use, I would have extended it to any issue.  What I find more disturbing, the leftist indoctrination these students must endure in our public schools.

    Big Tent, could you explain the legal theory of this comment?  Stevens: "Surely our national experience with alcohol should make us wary of dampening speech suggesting--however inarticulately--that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."

    The stoners on the Court want refer legalized!  


    Stevens' Trusts Students (5.00 / 1) (#20)
    by RustedView on Mon Jun 25, 2007 at 03:42:03 PM EST
    I think what you find there is that Stevens is simply saying that he trusts students to be engaged in the debate.  What is school, a place where you learn, about the fall of ancient Rome, about evolutionary biology, about chemistry, about physics, you read Catcher in the Rye and other literary classics, you study mathematics and computer science, and, perhaps most of all, you learn about civics, about involvement in your community, and you learn to think.  You learn about the freedoms the nation was founded upon.  Funny way to teach freedom of thought, freedom of speech and expression, freedom to debate, by stifling speech, expression, thought and debate.

    Students should be allowed into this debate, Stevens correctly notes.  And, like prohibition of alcohol before it, prohibition of marijuana may fall by the wayside.  To punish a student for holding a banner for "advocating" such a thing is ridiculous.  Funny how the right wing wants to spread freedom around the world, just not at home.

    Furthermore, the Majority could only speculate at what the banner meant, maybe it meant take bong hits, or maybe it meant we take, ... all they know is that Bong Hits are bad, Nancy Reagan said so, so whenever they are mentioned we need to find a way to suppress them.

    The kids sign was juvenile, I won't dispute that, but the notion you can suspend a kid standing on the sidewalk for holding a big banner... that is preposterous.
    Bong Hits 4 Jesus


    Trusts Students? (none / 0) (#23)
    by Fritz on Mon Jun 25, 2007 at 04:08:18 PM EST
    Why is the other Liberty (Religion)  in the 1st Amendment never given such trust?  Your cafeteria constitutionlism is quite romantic, but there are reasonable limitations on behavior.  Like the minority, your focus is on legalization of pot, not speech.  Suppose the banner advocated that gay marriage is a sin?  A current topic.  I would side with the school if they took it down, and so would you.

    False Analogy (5.00 / 1) (#32)
    by RustedView on Mon Jun 25, 2007 at 05:10:29 PM EST
    I do enjoy when someone draws a false analogy, it makes my day all the more fun.

    First, do not assume that I advocate legalization of marijuana, I am merely saying that I, like Justice Stevens, see an issue that two rational, logical people can be on both sides of, and I hope that students, like you and I, can act as citizens and debate this issue.

    Second, it appears you are attempting to draw the analogy between the disallowance of school prayer and this decision, claiming that religious liberty is hampered because we don't allow teachers and administrators to require students to pray.  There is a big difference between a student holding up a poster outside of school and a teacher/administrator requiring a student, who is part of a captive audience, to pray, or listen to others pray.
    For example, as a student I would have the right to not stand during the pledge of allegiance.  However, we have seen that students are forced to stand and recite an allegiance pledge (which could very well violate their religious views) even though the law of the land prohibits that.  Again, that is much different than a student on a street raising a banner.  We prohibit that sort of religious proselytizing by authority in schools.  As a student, so long as you don't violate the Tinker standards of disruption, you can get down on your knees and pray if you wish.  In fact, many student groups exist to do this, but they don't get captive audiences.

    Third, your "Gay Marriage is a Sin" is a bit of a false analogy.  [As an aside, is marriage sinful?  You would say no.  That means you are just saying gay people are sinful.  So, skip the couching in marriage and just attack gays if you want]
    And, if a person wants to stand on the street and hold that sign, yes, that is their right.  I may not agree with them, but they have that right. [Again, I'd just like you people to be honest and stop couching it in defending marriage.]

    Finally, I may be a cafeteria catholic, but I like the constitution fine, including the second amendment, so please refrain for your cafeteria constitutionalism comment.


    Specifics? (none / 0) (#27)
    by Molly Bloom on Mon Jun 25, 2007 at 04:25:59 PM EST
    Why is the other Liberty (Religion)  in the 1st Amendment never given such trust?  

    I am not sure what you are tyring to say here. Where is ones personal right religion  abridged?


    Prophetic not juvenile, the deepest of heresies (none / 0) (#33)
    by Aaron on Mon Jun 25, 2007 at 06:13:01 PM EST
    I don't find the banner's message juvenile at all, it's the best kind of satire, that which strikes at the heart of the hypocrisies and supercilious religiosity of those who use religion as a cloak of moral invincibility, on their march towards the conversion of everyone and everything in their path.  

    The banner is a message of defiance to these who have reacted as they always react to anything which could be construed as a threat to their version of doctrine, and has historically been there default defense at least since Martin Luther and the Reformation.  Just a few centuries ago these young people would have been burned for such heresy, today in America the orthodoxies only recourse for censorship and repression is through the courts, thankfully for all our sakes.

    So let me take this opportunity to go farther than the students with their banner, and make it plain to those who fear such declarations, declarations which in their sad pathetically narrow vision are viewed as the deepest of heterodoxies. Let me state unequivocally that Jesus was quite obviously a stoner (check the hair), who invented the bong, and smoked marijuana regularly, and upon his imminent return will immediately begin passing out heavily globulated ganja to the faithful, in the hopes of getting them back in touch with the one true God once again.

    Jesus was a stoner, and smoking marijuana brings you closer to God, HALLELUJAH!  

    Now burn me if you dare.  :-)


    Amen Brother Aaron..... (none / 0) (#36)
    by kdog on Tue Jun 26, 2007 at 09:39:06 AM EST

    Peace be with you and may your sacred crop be bountiful.


    You need not.... (none / 0) (#16)
    by kdog on Mon Jun 25, 2007 at 03:33:59 PM EST
    be a stoner to want reefer legalized...you just need the capability to reason and a thirst for freedom.

    Hard to picture Kennedy as a stoner. (none / 0) (#17)
    by oculus on Mon Jun 25, 2007 at 03:35:13 PM EST
    Strike that. (none / 0) (#18)
    by oculus on Mon Jun 25, 2007 at 03:41:00 PM EST
    Read the footnotes (none / 0) (#29)
    by BigMitch on Mon Jun 25, 2007 at 04:29:08 PM EST
    In Alaska, the issue of legalization is hotly debated. The right to private consumption of pot in the home by adults is protected by our Constitution's explicit guarantee of privacy.

    Please visit the Schapira blog, "What we know so far"

    "... and tell 'em Big Mitch sent ya!


    What the heck is a "leftist?" (none / 0) (#34)
    by Repack Rider on Mon Jun 25, 2007 at 07:53:51 PM EST
    What I find more disturbing, the leftist indoctrination these students must endure in our public schools.

    As far as I can tell, the most striking difference between liberal and conservative thought is that facts and evidence are more important to liberals than to conservatives.  Conservatives just want someone in authority to tell them what "truth" is, which is why we have had Rush Limbaugh inflicted on us for so long.

    Please define "leftist indoctrination"  Would examples of "rightwing indoctrination" include claims that Saddam had WMD or that you will go to Hell if you had an abortion?


    BTD (none / 0) (#35)
    by Sailor on Tue Jun 26, 2007 at 12:24:43 AM EST
    With all due respect, I think the difference was The wackdoodles group screwed up when they sent their followers to a website dedicated to defeating Feingold's run for the Senate. That is political advocacy.

    The kid never screwed up at all. He wasn't in class. He didn't even attend school that day. He was on public property. He advocated a position that was against the gov't POV. That's free speech.

    Obviously the Supremes disagree with both of us ... 5-4 on ALL cases that were handed down today.


    For those of us in the peanut gallery (none / 0) (#1)
    by manys on Mon Jun 25, 2007 at 12:53:07 PM EST
    What's "IOKIYAR?"

    It's Ok If You Are A Republican (none / 0) (#2)
    by Big Tent Democrat on Mon Jun 25, 2007 at 12:58:52 PM EST
    ty manys (none / 0) (#4)
    by cpinva on Mon Jun 25, 2007 at 01:10:34 PM EST
    i was wondering what the heck that meant too! lol

    The War on Drugs.... (none / 0) (#3)
    by kdog on Mon Jun 25, 2007 at 01:01:20 PM EST
    automatic justification for so much tyranny...sad.  Just say "illegal drugs" and all sense of reason goes out the window.

    Nice try kid, but our country ain't what we think it is.  We're victims of false advertising.

    Proving that I'm not always a liberal (none / 0) (#6)
    by Maryb2004 on Mon Jun 25, 2007 at 01:12:07 PM EST
    I have to say that I can't get worked up about this school case.  If I could legally take away all free speech rights of teenagers in schools I'd do it.  Political or not. Let them learn to express themselves on their parents' time.

    My objection has always been (none / 0) (#7)
    by Big Tent Democrat on Mon Jun 25, 2007 at 01:22:26 PM EST
    school was out for the parade.

    I don;t see how the principal had authority over Frederick.


    From the standpoint of school's potential (none / 0) (#12)
    by oculus on Mon Jun 25, 2007 at 02:33:50 PM EST
    liability for injury to students, the principal should be saying the kid was on his own at the parade.  

    That's interesting. (none / 0) (#21)
    by ding7777 on Mon Jun 25, 2007 at 04:06:56 PM EST
    what would the principal have done about the sign if none of the sign carriers were students?

    Possibly (none / 0) (#19)
    by Maryb2004 on Mon Jun 25, 2007 at 03:41:21 PM EST
    because it wasn't a board of education approved holiday?   So it was still school time.

    more like (none / 0) (#22)
    by ding7777 on Mon Jun 25, 2007 at 04:07:50 PM EST
    a school field trip

    True. School sanctioned and school supervised, (none / 0) (#24)
    by oculus on Mon Jun 25, 2007 at 04:12:15 PM EST
    per Roberts's opinion.

    So (none / 0) (#25)
    by squeaky on Mon Jun 25, 2007 at 04:18:56 PM EST
    The school is liable for all the millions who saw the sign and are now addicted to weed. Also those who have been arrested for possession because they saw the sign.

    Let the SC sanctioned law suits begin. The school's insurer will have to increase the premiums by an exponential factor.


    Not really. Just means the school principal, (none / 0) (#26)
    by oculus on Mon Jun 25, 2007 at 04:21:59 PM EST
    was acting under color of law as a public entity employee w/i the course and scope of his employment, so he can be sued for damages in his individual capacity for violation of the kid's First Amendment rights.  

    But If (none / 0) (#30)
    by squeaky on Mon Jun 25, 2007 at 04:47:12 PM EST
    The reasoning behind the majority decision were real, many would be breaking the law because they saw the sign. Since the principal was concerned about the message causing harm doesn't the school have some liability for the sign being visible even if only for a few minutes.

    According to the court bong hits 4 jesus are very dangerous words, such that just a mere glance would make the uninitiated want to toke up.  So if millions saw it, albeit breifly, can't they sue the school for their lawless action, rehab expenses, etc. caused by viewing the dangerous words.


    Hold on..... (none / 0) (#9)
    by kdog on Mon Jun 25, 2007 at 01:26:24 PM EST
    But Mr. Hand...if you're here, and I'm here...doesn't that make it "our time"?

    (hat tip to Jeff Spicolli)

    If glorious freedom makes a teacher's job tougher, so be it.  It's worth it.


    Brilliant and snarky! (none / 0) (#37)
    by Sailor on Wed Jun 27, 2007 at 11:22:03 PM EST
    "imminent" lawless action (none / 0) (#8)
    by lilybart on Mon Jun 25, 2007 at 01:23:54 PM EST
    how can it be imminent? Does everyone in the crowd have quick easy access to a loaded bong?

    Stevens Language (none / 0) (#10)
    by RustedView on Mon Jun 25, 2007 at 01:51:47 PM EST
    I do enjoy Steven's "dumb students", but I prefer his musing:
    But just as prohibition in the 1920.s and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs.

    or, even the question of whether the school district could ban "WINE SiPS 4 JESUS".

    Regardless, you should now look for even more schools going after students for posting on message boards and blogs, myspace, etc, from school libraries, or just reading them from the school.

    What's a Bong? (none / 0) (#11)
    by squeaky on Mon Jun 25, 2007 at 02:32:47 PM EST
    This is the most disingenuous decision I have ever heard, yes I know that I am not a constitutional scholar, but really....

    If we get another GOP in 08, the SC will move America back to the middle ages. Scary thing is that they want it so bad that they may stop at nothing to achieve the goal.  

    More war, more terror in America would do the trick. Cheney, Bush and the crew know it all to well.

    ianal, and I may be reading this wrong, (none / 0) (#28)
    by sarcastic unnamed one on Mon Jun 25, 2007 at 04:26:40 PM EST
    but is Stevens really suggesting that the pot reference and advocacy of a banner reading "bong hits 4 Jesus" is obtuse, subtle and ambiguous?
    But if advocacy could somehow be wedged into Frederick's obtuse reference to marijuana, that advocacy was at best subtle and ambiguous.
    If so, what planet is Stevens phoning in his dissent from? If not, what in heck was Stevens trying to say?

    The kid wasn't on school grounds (none / 0) (#31)
    by kindness on Mon Jun 25, 2007 at 05:00:33 PM EST
    He was across the street on public property.

    At that point, imo, it would be his parents responsibility to decide whether of not it would be appropriate to reprimand him, not the schools.

    Exactly! (none / 0) (#38)
    by Sailor on Wed Jun 27, 2007 at 11:25:43 PM EST
    he didn't go to school that day. He wasn't on school property. And while the event may have been 'supported by the school' it wasn't a school event.