WILL THE SUPREME COURT SEPARATE 'DRUG SPEECH' FROM FREE SPEECH?

Justices in the Supreme Court's "Bong Hits 4 Jesus" case appear to be
interested in turning "Just Say No" into "Don't Even Say It,"
curtailing free speech rights.

On Monday, March 19, the Supreme Court heard a case concerning the
scope of student speech in public high schools. The case, Morse v.
Frederick, involved an 18 year old high school student who was
punished by school officials for displaying a banner on a sidewalk
across the street from his school. The banner was destroyed and the
student was suspended because officials believed the banner, which
read "Bong Hits 4 Jesus," touted a pro-drug message in violation of
the school's anti-drug policy.

The case has the potential to impact a wide swath of student
expression. The Court, however, could walk a narrower path and carve
out as undeserving of constitutional protection just one type of
speech: drug speech. Based on the justices' questioning at oral
argument, it appears that a majority of the Court may be inclined to
refashion the Nancy Reagan's mantra "Just Say No" into "Don't Even
Say It," when it comes to student speech that references drugs.

One of the most disturbing features of the Supreme Court argument was
the fact that most of the justices appear to believe that because
drugs in high schools are a scourge worth combating, student speech
about drugs -- and by extension drug policy -- is likely to encourage
student drug use. The justices, in other words, equated student
speech about drugs with drug use itself, and a majority may permit
school administrators to censor the former in the hopes of snuffing
out the latter.

But this conflation of speech and conduct is unwarranted and
dangerous. It was telling that the very same Ken Starr, who argued in
favor of student censorship appeared on the Supreme Court steps for
media interviews along with former Drug Czar Barry McCaffrey who, a
decade ago, warned physicians who spoke about the potential medical
benefits of marijuana that they "sent the wrong message" to youth.
McCaffrey was so convinced that physician speech would incite
adolescent drug use that he threatened to punish doctors who
recommended medical marijuana to their sick and dying patients. The
federal courts struck down McCaffrey's plan because it violated
doctors' First Amendment rights. Studies now show that adolescent
marijuana use is actually lower in those states that protect the
cultivation and use of marijuana for medical purposes.

To date, neither the government, nor schools nor the media have
succeeded in crafting messages that actually prevent the use of
alcohol and other drugs among students. As the independent U.S.
Government Accountability Office found, after investigating the most
widespread prevention program of all time, there is "no significant
differences in illicit drug use between students who received DARE
(Drug Abuse Resistance Education) and students who did not." The GAO
also panned the Drug Czar's billion dollar Youth Anti-Drug Media
Campaign, concluding that the now infamous TV and radio spots,
including those equating adolescent drug use with terrorism were "not
effective in reducing youth drug use."

These facts are not an argument about the futility of prevention
education, but rather about the futility of censorship. What should
matter most is that the message actually induces its audience to
engage in less harmful behavior. History has repeatedly shown the
opposite: that censorship has been ineffective in advancing
governmental interests.

School censorship of speech about drugs is a profoundly bad drug
abuse prevention strategy. A student sitting at a personal computer
can retrieve 22 million websites by typing in the word "marijuana"
into a search engine -- with those of the White House Office of
National Drug Policy and Drug Policy Alliance, organizations
advocating disparate policy views, among the first appearing. As
those who study adolescent drug attitudes recognize, strategies that
deny that students' right to hear a range of opinions -- from
friends, adults or the media -- do not work. Nor do those that
discount students' intelligence and experience, or that lack candor
and credibility. In short, curtailing student speech bears no
reasonable relationship to reducing drug use.

Students are especially affected by -- and distinctly qualified to
speak about -- a number of drug policies that are the subject of
intense debate: the lengthy sentencing laws that incarcerate hundreds
of thousands of parents, siblings and friends; the mounting data
impugning random student drug testing; widespread racial inequities
in the enforcement of drug laws; and the increasing difficulty
grandparents to obtain adequate pain relief. Students have a unique
perspective on many of these important issues and society has a
strong interest in hearing from them.

A Supreme Court decision saying that because adolescent drug use is
bad adolescent discourse about drugs is unworthy, or less worthy, of
constitutional protection would be a serious blow to First Amendment
principles. But such a ruling would also enshrine in national law a
needlessly cynical view of the abilities and responsibilities of high
school students to discuss timely, albeit controversial matters. It
is irresponsible to ignore what high school students actually think,
know, and believe about drugs or to punish them because high school
officials do not like what they have to say. We do so at our peril.