posted
I'd never heard of this case before. The part I find shocking is that the school district fired the kid's father in connection with the suit. If there is something I wish people would learn (besides the Gospel), it's that retaliatory firings are a bad idea.
I'm also really surprised that coverage of this never came to my attention as I was a real news hound back in 2002. Now I'm more of a news terrier.
Posts: 11017 | Registered: Apr 2003
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The ruling is quite limited. Two of the five (Alito and Kennedy) who joined the majority opinion also wrote a limiting concurring opinion that made clear the limits of the holding:
quote:I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use."
...
In addition to Tinker, the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986), permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; and Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 (1988), allows a school to regulate what is in essence the school's own speech, that is, articles that appear in a publication that is an official school organ. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.
The more important free speech case yesterday was one allowing as-applied challenges to McCain-Feingold restrictions on issue advocacy. I'll probably post more on that later.
Further, 3 of the dissenters made it clear that the principal was within his rights and did not violate the student's rights when the principal pulled down the banner. It was only disciplining the student that the dissenters considered unconstitutional.
Finally, Breyer did not even address the amendments of the first amendment claim, but would have held that qualified immunity precluded the student from succeeding in the suit.
Posts: 26071 | Registered: Oct 2003
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posted
i saw this on the news yesterday at a FireHouse sub shop and laughed at these kids. the whole time i was eaeting there was only news about "Bong Hits 4 Jesus" and Paris Hilton. i dont really feel informed at all after watching either.
Posts: 813 | Registered: Nov 1999
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quote:(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue
I would think that (a) and (b) contradict one another in two distinct ways.
1) Advocating illegal drug use is commenting on a political or social issue. 2) A reasonable observer might interpret something as advocating drug use when other reasonable observes might plausibly interpret it as commenting on an entirely different issue. In this case, one could reasonably interpret this banner as advocating drug use OR one could reasonably interpret as expressing a right to free speech. The text of the banner is pretty ambiguous.
Posts: 2432 | Registered: Feb 2001
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And maybe the banner meant that people should actually be physically hitting a bong, rather than using it to imbibe illegal drugs.... or maybe the word "bong" was an onomatopoeic for the sound of a large bell, so the student was just urging people to ring a large bell for Jesus.... or maybe he was noting that a player named Bong was asked to pinch hit for a player named Jesus....
quote:I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on...the wisdom of the war on drugs or of legalizing marijuana...
quote:Advocating illegal drug use is commenting on a political or social issue.
I thin the distinction he's trying to draw is between advocating using illegal drugs and advocating legalizing drugs that are currently illegal. The construction being used is specific permission followed by general exclusion. In such cases, when there is overlap between the specific description and the general description, the specific is deemed to be excluded from the general.
I do think it's important to note that at least 8 justices agreed that the principal had the right to remove the sign, which means that 8 justices agreed the student had no right to say those things in that fashion during the event.
Posts: 26071 | Registered: Oct 2003
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quote:I thin the distinction he's trying to draw is between advocating using illegal drugs and advocating legalizing drugs that are currently illegal.
I think that's a distinction without a difference. Even the simple statement "I support medical marijuana use." could be reasonably interpreted to support the illegal use of marijuana OR legalizing marijuana as a prescription drug.
Posts: 3275 | Registered: May 2007
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posted
It's hardly a distinction without a difference. In fact it's a huge difference in what's being advocated. The fact that some statements can be interpreted both ways does not mean the difference does not exist.
Posts: 26071 | Registered: Oct 2003
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quote:it provides no support for any restriction of speech that can plausibly be interpreted as commenting on...the wisdom of the war on drugs or of legalizing marijuana...
This seems like a remarkably false distinction to me, I have to admit. As Destineer points out, the fact that the addition of the word "legalize" somehow makes this kosher is laughable. It's like splitting a hair that does not, in fact, actually exist.
Why, in a statement like "bong hits for Jesus," cannot the advocacy element of that recommendation be assumed? Do we require that exotic dancers make the political speech inherent in their performance explicit?Posts: 37449 | Registered: May 1999
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quote:Originally posted by MattP: I think that's a distinction without a difference. Even the simple statement "I support medical marijuana use." could be reasonably interpreted to support the illegal use of marijuana OR legalizing marijuana as a prescription drug.
The court would disagree.
If you read the decision, they actually analyzed the wording and came up with the conclusion that the only thing it could mean was a support of doing an activity that was currently illegal (rather than an attempt to suggest that a currently illegal activity be legalized). Breaking a law and protesting a law are two different things. The same goes with suggesting a law be changed, and suggesting breaking the current law.
The court also gave Frederick the chance to clarify his meaning, which would have given him the chance to say he just meant to say that it should be legalized, but he refused. He stuck with the argument that it was just a meaningless phrase that did not refer to drugs at all.
They also pointed out that what he did would have been fine outside of a school setting.
Posts: 1901 | Registered: May 2004
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quote:I thin the distinction he's trying to draw is between advocating using illegal drugs and advocating legalizing drugs that are currently illegal.
I'm certain you are right - but I do think that's a awfully thin distinction.
Why? It's one that is extensively made in the abortion debate, for example: people take umbrage at being characterized as supporting abortion when they're really opposing making it illegal. It's one that's made in debates concerning hate speech. In fact, it's at the heart of most of the non-trivial political discourse that takes place in this country.
Hell, I get lectured all the time here (incorrectly, I might add) for not drawing the distinction between whether an act should be/is legal and whether committing that act is good.
Posts: 26071 | Registered: Oct 2003
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quote:This seems like a remarkably false distinction to me, I have to admit. As Destineer points out, the fact that the addition of the word "legalize" somehow makes this kosher is laughable.
Well, it doesn't make it kosher, actually - the justices would still have supported removing the banner. It would have made (for at least two additional justices) punishment based on the content inappropriate.
If the school had enforced a no-banner rule without reference to content, the case would likely not have made it to SCOTUS.
Posts: 26071 | Registered: Oct 2003
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quote:The U.S. Supreme Court...[held]...that government cannot constitutionally punish abstract advocacy of...law violation... ...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy..of law violation except where such advocacy is directed to inciting or producing...imminent lawless action and is likely to incite or produce such action. ...held that "mere advocacy" of any doctrine, including one that assumed the necessity of...law violation, was per se protected speech.... ...As of 2007, the Brandenburg test is still the standard used for evaluating attempts to punish inflammatory speech...
quote:It's one that is extensively made in the abortion debate, for example: people take umbrage at being characterized as supporting abortion when they're really opposing making it illegal.
But that's an ethical distinction, not a legal distinction. If abortion were illegal, would a sign like "have a back-alley abortion today!" really not be considered political speech?
Posts: 37449 | Registered: May 1999
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quote:It's hardly a distinction without a difference. In fact it's a huge difference in what's being advocated. The fact that some statements can be interpreted both ways does not mean the difference does not exist.
Virtually any statement supporting a currently illegal activity that doesn't explicitly argue for legalization can be interpreted either way.
Posts: 3275 | Registered: May 2007
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quote:The U.S. Supreme Court...[held]...that government cannot constitutionally punish abstract advocacy of force or law violation... held that "mere advocacy" of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech.... ...As of 2007, the Brandenburg test is still the standard used for evaluating attempts to punish inflammatory speech...
It's such a fine line between stupid and clever.
And the Court has never applied Brandenburg en toto to school. Even the dissent agrees that the proposition "the constitutional rights of students in school settings are not coextensive with the rights of adults" is "uncontroversial." It also states that "it is possible that our rigid [Brandenburg] imminence requirement ought to be relaxed at schools."
The dissent did not disagree with the concept that "that the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly 'advocates the use of substances that are illegal to minors.'" It agreed that "the First Amendment protects student speech if the message itself [does not] expressly advocate[] conduct that is illegal and harmful to students."
In other words, the dissent disagreed about the fact of this case. All 8 justices who expressed an opinion on the matter are in agreement that schools may constitutionally prohibit explicit advocacy of illegal, harmful activity. The disagreement is over how explicit the advocacy must be and over whether such advocacy occurred in this case.
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posted
My favorite part of all this is that the kid kept trying to claim that the sign didn't mean anything.
How old do you think these Justices were in the Sixties? Did he honestly think they'd never heard of a bong before? Come on!
Posts: 2283 | Registered: Dec 2003
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posted
You know, I can sympathize with that argument, to some extent. The sign probably didn't mean anything. The kid wasn't actually advocating that people do drugs for Jesus; nor was he seriously pushing a legalization agenda. He was being provocative without regard for the actual content of his provocation. Unfortunately, being honest about this probably hurt him.
Posts: 37449 | Registered: May 1999
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posted
If he's the kind of kid who runs around using slang he doesn't understand, then he deserved to be punished for that alone. It's like the guys in the Dr. Scholl's commercials who claim they're gelling when they don't know what it is. It's just sad.
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posted
I don't think he didn't understand the words, I think he was just being goofy and "Bong hits for Jesus" was the first ridiculous thing that came to mind.
Posts: 3275 | Registered: May 2007
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posted
Sorry, Porter. Forgot the </tongue in cheek>
Although I'm still not real impressed with the idea that he shouldn't get in trouble for talking about pot at school cause he thought it was funny. At least when the folks I knew discussed it, it was educational. Posts: 2283 | Registered: Dec 2003
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posted
Freedom of the press shall not be abridged, except if the content can be construed as something important like drug use or elections or something.
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posted
There's been a whole series of posts about the limitations of the first amendment in a public school setting.
Posts: 26071 | Registered: Oct 2003
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Frederick's position that he didn't mean anything by it is interesting, so that the effect on a resonable observer becomes a determining factor. Is there freedom of expression if he didn't intend to express anything?
I mean, it's really wild in the sense of the social construction of reality, if it were the case that he really didn't think it meant anything. Particularly if we look at areas like proselyting and advertising. Someone could compose a message, have it delivered by an innocent, and interpreted on the other end without comprehension on the part of the messenger. I think this sort of thing probably goes on all the time.
Did I ever tell you about that morality talk we got about how rock music might have messages in it, and then our church leader drew an irregular pentagon on the board and asked us what it was, and most of us looked at him weird, and he said if he was a baseball player, it would mean home plate. His point was that some things are recognizable to adults that aren't recognizable to children. But I guess he'd forgotten, or possibly never knew, the metaphor of a home run in terms of morality.
Posts: 11017 | Registered: Apr 2003
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posted
I haven't really been following this bit of news, other than to think it's pretty silly. However, I thought this might be of interest in this thread:
posted
I'm curious. If the Supreme Court opinion clearly gets the facts incorrect, as is suggested in what Glenn linked, is there some method of challenging it that reuires it to be handled?
Posts: 10177 | Registered: Apr 2001
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posted
An important thing about factual errors in appellate cases: the precedent set (as opposed to the holding of the case at bar) is based on the facts as summarized in the opinion being cited. So for future cases citing this, the factual errors (if any) don't matter. In this case, the facts as characterized by the majority opinion state that this was a "a school-sanctioned and school-supervised event." So for purposes of using this case to decide future cases, it was school-sanctioned.
Obviously it matters a great deal to this case whether the correct facts were used to decide it. The article itself presents a one-sided interpretation of the facts, most likely relying heavily on the Respondent's Brief. However, that's not a good place to get them from. Here's the Petitioner's Brief. (edit: it's not a good place to get the facts from either, of course).
Note also that, in general, appellate courts don't find facts. They take them as the lower court decided them. (The boundary between facts and law is quite fuzzy, though.) Here is the summary of the lower court proceedings from the SCOTUS opinion linked above:
quote:Frederick then filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney's fees. The District Court granted summary judgment for the school board and Morse, ruling that they were entitled to qualified immunity and that they had not infringed Frederick's First Amendment rights. The court found that Morse reasonably interpreted the banner as promoting illegal drug use--a message that "directly contravened the Board's policies relating to drug abuse prevention." App. to Pet. for Cert. 36a-38a. Under the circumstances, the court held that "Morse had the authority, if not the obligation, to stop such messages at a school-sanctioned activity." Id., at 37a.
The Ninth Circuit reversed. Deciding that Frederick acted during a "school-authorized activit[y]," and "proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use," the court nonetheless found a violation of Frederick's First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a "risk of substantial disruption." 439 F. 3d 1114, 1118, 1121-1123 (2006). The court further concluded that Frederick's right to display his banner was so "clearly established" that a reasonable principal in Morse's position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity. Id., at 1123-1125.
So the trial court found it to be "school-sanctioned" and the appellate court found it to be "school-authorized." Here's how the appellate court characterized the question and answer:
quote:Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”
The appellate court makes much of the off-campus nature in order to demonstrate the lack of disruption (the Tinker test). It never states that the event was not school-sanctioned.
Unfortunately, I don't have the trial court decision.
Not one judge or justice who decided in a manner contrary to the majority SCOTUS opinion found that the event was not school-sanctioned. There are facts cited in the Petitioner's brief to support the finding of a school-sanctioned event, and none of us (including Mr. Kilpatrick) is in a position to choose which version (petitioner's or respondent's) is more accurate.
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