Bong Hits 4 Jesus!

The Tournament has been pretty boring this year. No Cinderellas have emerged, unless you count Vanderbilt, which I don't.

So for some excitement, the Supreme Court has conveniently scheduled Monday morning for oral argument in Morse v. Frederick!

The underlying incident that led to the case occurred 5 years ago, when plaintiff-respondent Joe Frederick was an 18 year-old senior at defendant-petitioner Juneau-Douglas High School in Juneau, Alaska. The public school had suspended classes for a few hours so that students could cheer on the relay of the Olympic torch, which was passing directly in front of the school enroute to the Salt Lake City Winter Olympics. Frederick, who had skipped classes that day, showed up and stood across the street from the school on a public sidewalk with couple of friends and unfurled a banner that read "Bong Hits 4 Jesus" in an apparent attempt to get himself noticed by the live local TV coverage of the event.

Principle Debbie Morse then crossed the street and demanded that Frederick take down the banner. He refused. Morse then proceeded to rip up the banner, ordered Frederick to her office, and suspended him for 10 days. Frederick subsequently filed a suit claiming violation of his constitutionally protected civil rights to freedom of speech.

How awesome is that? A class-cutting stoner high school student pulling a dumb prank in an apparent bid for some degree of local notoriety instead ends up in the US Supreme Court. I picture the current 23 year-old Joe hanging out with his buddies, drinkin' MGD and playing mailbox baseball in Juneau, all laughing about Joe's moment of glory. His case is in the Supreme Friggin' Court! His story is in the New York Times! That's rad, dude! Or whatever MGD drinkin' and mailbox baseball playin' 23 year-olds in Alaska say in such situations.

Anyway. Frederick's attornies' opponent in the arguments will be Kenneth Starr. Yes, that Kenneth Starr. Fresh off his efforts towards impeachment, Starr is currently Dean of Pepperdine Law and concurrently a partner at Kirkland & Ellis, which has taken on the case pro bono (I'm not sure why school districts need pro bono representation when they have to defend themselves after destroying student property, as it seems like their insurance would cover such matters. But whatever). Starr is joined by the United States, who has filed as Amicus arguing that public schools should be able to restrict speech promoting drug use (to wit: "bong hits" and Jesus' implied endorsement of them). It should be noted that the school has lost at all levels on its way up to the Supremes, but with these heavy hitters who knows what could happen.

But Frederick has some heavy hitters of his own: In addition to the obvious ACLU and other civil rights organizations, a number of Christian right organizations have filed as Amicus on Frederick's side. Why would a Christian Right group want to overlook the obvious blasphemy here and support Frederick? Perhaps because they are engaged in a number of lawsuits seeking to establish or uphold the right of students to wear t-shirts indicating the immorality of homosexuality. What Would Jesus Do? Apparently he would overlook the commandment-breaking taking-of-His-name-in-vain so as to ensure that hell-bound gay teenagers face the moral condemnation they deserve when they go to school in the morning (while I support such students legal right to express those views, it certainly does not mean that I support the sentiment).

All of which makes for alliances and oppositions of epic proportions. In this corner, an alliance between slacker stoner heretic pranksters, the ACLU, and gay-bashing born-again Christians. And in the opposing corner, Kenneth Starr and the United States of America. Let's get ready to rumble!

Click here to find out why the Supreme Court cares about whether or not Jesus wants us to do bong hits
How will the Supremes decide the case? They will first face a threshold question: was the speech across the street from the school sufficiently connected to the school so as to justify the school's restriction of the speech? It is clear that if it was a non-student displaying the banner on a public sidewalk across from the school, it would be protected speech. It is also clear that if a student such as Frederick displayed the banner away from the school and not in connection with a school event, it would also be protected speech. However, the Court has held that students right to speech in public schools or in connection with school events can be restricted by schools if it is lewd or offensive and/or materially and substantially interferes with discipline in the school. So the case might hinge on whether the Court finds that the banner was in connection with a school event. The school argues that it was, since it allowed students to leave classes, had four students bearing the torch, and had a number of events coordinated with the torch relay. Frederick argues that it was not, in that he was across the street on a public sidewalk, and was at the event of his own volition and unconnected to the school since he had not attended class that day.

If the Court clears this threshold question by deciding that the speech is subject to the restrictions on student speech as it was made in connection with a school event, they will then face the second question (and the one that everyone, with the possible exception of Joe Frederick himself, wants them to get to and resolve in their favor): Does a banner with the words "Bong Hits 4 Jesus" constitute speech which a school might restrict on the basis that it is promotion of drug use?

Supreme Court precedent on student speech is relatively sparse. In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), the court held that a school may not restrict the right of students to wear black armbands to show their opposition to the Vietnam War. They reasoned that students are entitled to the constitutional protection of speech that does not materially and substantially interfere with discipline, particularly in cases where the speech is "pure speech" that expresses a particular political viewpoint. However, the Court has also held that lewd or offensive speech by a student is not entitled to protection. Bethel Sch. Dist. v. Fraser, 478 U.S. 675. In that case, the court held that a school could discipline a student for giving a lewd speech to the student body that did not express a "pure speech" viewpoint.

That is about the extent of Supreme Court precedent on this issue. So this question will hinge on a few sub-issues: whether the speech materially and substantially interferes with discipline, whether the state's interest in discouraging drug use creates a valid exception to protecting student speech, and whether the speech in the present case actually is a statement promoting drug use and/or to what degree the speech is "pure speech" that represents a political viewpoint, in that a banner reading "Bong Hits 4 Jesus" could be construed anywhere on the continuum of speech from serious political statement to attention-seeking prank.

Whew! That all got a bit lawyerly. While the legal aspects are interesting, it is really the combination of slacker-stoner high school kids, a dark Alaska winter, a rampaging, banner-destroying high school principal, the Olympic torch relay, bands of anti-homosexual Christians, Ken Starr and one 14 foot long banner that poses the question of whether or not Jesus wants us to do bong hits that ensure that this will be a kick-ass case (though clearly not as kick-ass as Burnham v. Superior Court). If you want to check out what happens, make sure you check in Monday with Oyez, where they should have the transcripts and possibly audio by the afternoon.

Bong Hits 4 Jesus!