Wonder Land

BONG HITS 4 JESUS -- EXPLAINED

In a better world, the phrase "Bong Hits 4 Jesus" would take its
place in the library of eternal mysteries alongside "Bye-bye Miss
American Pie," "I Am the Walrus" and "It's Alright, Ma, I'm Only
Bleeding." Instead, it fell Monday to the Nine Interpreters of the
U.S. Supreme Court to deconstruct "Bong Hits 4 Jesus" and decide for
the rest of us whether it falls inside the protections of the
American Constitution.

Perhaps an explanation is in order. Morse v. Fredericks, aka Bong
Hits 4 Jesus, is a First Amendment free-speech case. The phrase "Bong
Hits 4 Jesus" came to life as a 15-foot banner, which Joseph
Fredericks, a senior at the high school in Juneau, Alaska, unfurled
directly across from the school entrance as a parade passed by
bearing the Olympic torch for the 2002 Olympics. Whereupon, the
school's principal, Deborah Morse, ordered Mr. Fredericks to take
down his banner and later suspended him.

Some definitions: As defined by the online encyclopedia Wikipedia, "A
bong, also commonly known as a water pipe, is a smoking device,
generally used to smoke cannabis [aka marijuana], but also other
substances." The entry also explains a "hit." "The user places
his/her lips on the mouth piece, forming a seal, and inhales.

An inhalation is known as a 'hit'." (For the still curious, the
Wikipedia entry is long and lovingly prepared, with beautiful color
photos of bongs and explanations of "bong water" and "health benefits.")

Principal Morse, who had had other run-ins with Mr. Fredericks,
believed his sign was undermining the school system's anti-drug
policy, and so took action. Within months, Mr. Fredericks sued,
assisted by the Alaska Civil Liberties Union, claiming violation of
his free-speech rights.

Some history: Lawsuits over the free-speech rights of schoolchildren
exist because the Supreme Court legitimized them in 1969. Several
years earlier, a 13-year-old girl and 15-year-old boy decided to wear
black armbands to their schools in Des Moines, Iowa, to protest the
Vietnam War. The schools had a policy against wearing symbolic
armbands at school and warned they'd be suspended. They showed up
with the anti-Vietnam armbands, were suspended and in what today is
the landmark Tinker case for school "speech," Justice Abe Fortas
famously wrote that students do not "shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate." Two
later cases, Fraser and Kuhlmeier, refined Tinker's scope, which
we'll see shortly is the background to one of the most hilarious --
and revealing -- exchanges at oral argument ever in a school
free-speech case. In the years since, school officials and lower
courts have struggled with Tinker. The Massachusetts Supreme Court
said a T-shirt, "Coed Naked Band: Do It to the Rhythm," was protected speech.

But schools in several states have banned a T-shirt with "Abortion is
Homicide. You will not mock my God." (Religious groups filed amicus
briefs for the Juneau "bong" banner because they want similar
protections to wear anti-abortion shirts and the like.) A federal
appeals court in California said schools could ban a T-shirt calling
homosexuality shameful because it was "injurious to gay and lesbian
students and interfered with their right to learn." But a federal
court in Ohio conferred constitutional protection on a shirt with:
"Homosexuality is a sin! Islam is a lie! Abortion is murder!" All
these cases involve public schools. There are legal blogs on the Web
which try to predict Supreme Court rulings. Many say the result in
the "Bong" case is a close call. Should we care? Are we past caring?

Here is Chief Justice Roberts Monday on applying the First Amendment
in Juneau: "You think the law was so clearly established when this
happened that the principal, that the instant that the banner was
unfurled, snowballs are flying around, the torch is coming, should
have said oh, I remember under Tinker I can only take the sign down
if it's disruptive. But then under Fraser I can do something if it
interferes with the basic mission, and under Kuhlmeier I've got this
other thing. So she should have known . . ."

The lawyer for "Bong" replied that the principal took a course in
school law and so had studied Kuhlmeier, Fraser and Tinker. Chief
Justice Roberts replied: "So it should be perfectly clear to her
exactly what she could and couldn't do." The lawyer: "Yes." Justice
Scalia: "As it is to us, right?" (Laughter in the court.) The Nine
Interpreters know that Tinker has produced a morass since 1969.
Justice Roberts said, "I thought we wanted our schools to teach
something." A school isn't an "open forum," remarked Justice Scalia,
"it's there for the teachers to instruct." Justice Ginsburg wondered
about "reasonable rules of decorum." Justice Breyer ridiculed
case-law standards in these fights: "I don't think [the principal]
has to be able to read content discrimination, viewpoint
discrimination, time-place. He doesn't know the law, the principal.
His job is to run the school."

Well, it used to be. We live in hyperpoliticized times.

With the Web drawing ever-greater numbers into the daily game, no
political offense is too slight to raise waves of high dudgeon.

And they roll into the schools.

Justice Breyer worries about "people testing limits all over the
place in the high schools." I worry about dumbing down the schools to
the current level of politics in the adult world. Rather than just
fiddle with the dials on the school-speech contraption, the solution
would be to take Tinker and throw it out the window.

But they won't. They'll tinker, telling us what to do, but unable to
give coherent reasons why we should do it.

The pious extension of First Amendment speech rights amid Vietnam
from adults to students prior to college was a mistake.

The Bong case may be another nail in the coffin of public schools.

Parents, including liberals who can afford it, will quicken the trend
to sending their children to private schools whose principals can
exercise real discretion and in loco parentis. One argument for the
say-it-loud status quo is that kids should be free in school to learn
how "to deal" with different viewpoints. I'd bet all nine Justices
went to high schools with principals who put learning first and
Tinkered "speech" in its place.

It doesn't seem to have stopped them from growing up to drive people
nuts with their opinions.