Bong Hits 4 Jesus

Monday, the infamous “Bong Hits 4 Jesus” case was argued before the Supreme Court. Kenneth Starr argued for the Alaska high school principal who ripped down a 14 foot banner that a student in her high school unfurled outside the school. The students had been released temporarily from class to watch the 2002 Olympic Torch Relay under teacher supervision, and as the torch bearer passed, out came the banner. The school band played a part in the festivity as well.

The principal ended up expelling the student for many days. The principal testified that she acted specifically because of the message she believed the banner conveyed – do drugs – not because of a rule, if any, about banners in general. The student claims he unfurled the banner merely for kicks – to aggravate the principal, among others – not to convey a pro-drug message. You may not believe that was really his sole purpose, but that is the position he takes.

If the principal had acted because unfurling a banner, regardless of its message -- “Bong Hits 4 Jesus” or “Jesus is Lord,” – was prohibited, then probably no credible constitutional claim could have been made. It would have been enforcement of a content neutral rule, however, by the principal's own admission, it was not. The leading Supreme Court case applicable here, Tinker, allows schools to take action when a student’s speech is “disruptive,” and this case is another chance for the court to clarify what it means by that erstwhile content neutral rule.

If the principal is found guilty of violating the student’s first amendment rights, then the court may award money damages, though they might not amount to much. What’s the cost of a banner that was created for merely kicks, after all? And the student’s subsequent notoriety has more than compensated him for his expulsion, in my opinion.

I read the transcript of the argument before the court. Starr specifically argued that the school and principal should have the right to censor and punish students whose expression is disruptive to, or undermines, its anti-drug educational mission. Indeed, Starr went so far as to argue the school could censor and discipline speech which conveys any message that’s “disruptive” to its “educational mission,” as defined by the school in its sole discretion.

What if a school doesn’t like a student’s pro-gay or anti-gay message because it runs counter to parents’ politically correct or religious sensibilities as embodied in its “educational mission”? There are all sorts of controversial issues upon which student speech could be squelched – are we really going to educate our young adults if we do not allow them to begin to express themselves in the context of school supervised activity, however erroneous they happen to be? Painful as it may be, that’s how we learn.

Indeed, when I was in high school I wrote a letter to the editor of the school newspaper which argued that the ban against recreational use of marijuana was unfair – what alcohol was to my parent’s generation, pot was to mine. But it was a letter to the editor, not a banner with a message that had nothing to do with what the school supervised “field trip” was all about, and, while it created a bit of a stir among the educators, no school educational or recreational activity was disrupted.

I’m a free speech advocate, obviously. Nonetheless, I think the school could have constitutionally ripped down the banner and disciplined the student. The purpose for which the school temporarily released the students under its supervision was to see and celebrate the passing of the Olympic torch through the town, and the banner “Bong Hits 4 Jesus” had nothing to do with that. Behavior, speech or otherwise, that materially disrupted that school activity could have been and should have been disciplined. The students knew what the purpose of their release was; it wasn’t recess.

From my review of the transcript, I suspect that is what Justice Kennedy believes, and, as the swing vote on the court, his opinion might very well end up being the one to which the court eventually gravitates.

So, I don’t think our first amendment rights need be threatened here, unless the Supreme Court opts to adopt the content based rule advocated by the school principal and Kenneth Starr, and then there is a lot to be worried about.

Yours/Always Controversial