OF BONG HITS AND BAD LAW

The impact of the Supreme Court's latest First Amendment rulings is
well defined in one case and not so in the other, leaving a host of
special interests applauding wildly and those who believe that student
speech is as protected as any other-shaken.

The practical result of the court's 5-4 decision to allow issue ads
before an election that mention a specific candidate probably will be
to substantially increase the cost of the upcoming presidential and
congressional elections, already approaching a record of over $1
billion. Predictions are that freeing up all those special-interest
groups, from businesses to unions to religious-based organizations
with a social or economic agenda, to back one candidate or debase
another could double the expenditures. For instance, the U.S. Chamber
of Commerce reportedly has dramatically increased its election-year
spending to push its policies on a number of issues despite the new
laws on campaign expenditures.

From the very beginning, the McCain-Feingold restrictions on the use
of so-called soft money have raised the eyebrows of
constitutionalists, many of whom decried the bans before an election
as being in direct contravention of freedom-of-speech guarantees. So,
using the name of a particular candidate to define an issue is now
protected speech unless it is a blatant statement of advocacy for that
candidate.

But it is the other ruling, in the case of an Alaska teenager who
unfurled a silly banner across the street from his high school and was
suspended, that is the more troublesome. The banner -- "Bong Hits 4
Jesus" -- was deemed by the court to advocate the use of illegal drugs
and therefore not speech protected by the First Amendment. A school,
it said, had the right to control the actions of its students when it
came to anti-drug policies.

Justice John Paul Stevens denounced the majority opinion as ignoring
the history of Prohibition and not permitting dissent to the
illegality of marijuana use. And the student in the case had argued
that he really wasn't advocating the use of drugs, which, if true,
merely certifies the legitimacy of the axiom that bad cases make bad
law. In this instance, it was a typical, silly teen-age prank that
ends up before the highest court in the land. Defending the student's
actions was a disparate array of groups ranging from civil
libertarians to conservative Christians and advocates of gay and
lesbian rights, who all saw the case as a potential threat to their
own ability to speak out on campuses.

But before anyone gets too hysterical over this ruling, it should be
noted that it is very narrowly drawn and does not restrict students
from questioning the educational mission of their schools, as had been
sought by Juneau school officials and the Bush administration. A
reason for this seems to be the notice given by Justice Samuel Alito
Jr. to others in the one-vote majority that he could not support a
broader restriction on student speech.

Had they insisted, he made it clear that he would vote the other way.
In fact, Alito had made his attitude toward the First Amendment quite
clear during an appearance before the ruling was announced.

Without saying how he had voted on the cases, he said he would take a
dim view of restricting free speech.

If that now seems contradictory to his public remarks, it is possibly
explained by the public's concern over drugs and schools.

Few issues bring about a more emotional and volatile
response.

The fear of juvenile drug use that often begins with marijuana is
almost overwhelming among parents, teachers and school administrators.
Whether the prank by the Juneau student during a parade for the
Olympic torch should have raised that level of concern, the fact is
that somehow it did, making it difficult for the court to ignore.

It is too bad that the issue of student protections under the First
Amendment had to be defined even partially by this matter.

A much better test would have been how the court views those students
who openly debate and disagree with campus or school policies.

While the last word may rest with the teachers and administrators,
shouldn't students have the constitutional right to speak out about
them in forums including the school newspaper?

It is a question that the court needs to answer once and for all,
rather than focusing on "Bong Hits 4 Jesus."