Wednesday, June 27, 2007

No bong hits, part II

As a self-proclaimed defender of student free expression rights, I'm certainly disappointed by the Supreme Court's decision to rule against Joseph Frederick in the "Bong Hits 4 Jesus" case.

That said, I'm not exactly crestfallen, either.

The ruling is pretty narrow and seems to be focused almost exclusively on speech that promotes drug use. Justice Alito summed it up this way in his concurring opinion:

"Public schools may ban speech advocating illegal drug use," Alito wrote in his concurrence. "But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that [it] does not endorse any further extension."

I still think the court was a little silly in thinking that any reasonable person -- yes, even teenagers -- would think that "Bong Hits 4 Jesus" means "Hey you! Go smoke pot!", but I can at least somewhat understand where it was coming from. Doesn't mean I agree with the decision, but I take comfort in knowing that the court took the time to acknowledge that this was a case about drug advocacy and not political or religious speech.

The key will be this: How broadly will administrators try to apply the decision? Although Hazelwood, at its core, is pretty vague, administrators have consistently misapplied even the most specific portions of the majority opinion and used the ruling as sweeping justification for squelching student speech.

The most troubling part for me is that the court has further extended what qualifies as "school sponsored." This was an event that took place outside of school hours and off school grounds. How will administrators and districts try and use this ruling to extend their power off campus? Will this extend to the electronic realm?

Time will only tell.


Jim Anderson said...

Jacob Sullum's analysis is similar to yours.

The Court doesn't seem to realize just how clear it needs to be so administrators can enforce discipline without running afoul of the law.

DrPezz said...

I think the early dismissal that day (if I remember correctly) should place the event outside of the school's jurisdiction. Also, I think the kid who raised the banner had skipped school that day, meaning that he was never under school supervision-especially if the watching of the Olympic torch is not considered a school event.

One real danger is the administrator with a faulty or limited understanding of the ruling attempting to apply it to other situations. We have a couple here, and I am curious how they will attempt to wield newfound leeway.

However, we have a new administrator who could be a calming voice, at least I hope. :)

Keep up the great posts!

Nuss said...

That's pretty much the same thing that has happened with Hazelwood and student publications. Many administrators overstep their bounds without even knowing it because of a limited understanding of what the ruling actually says.

The big problem with that, of course, is that student speech gets shut down in the meantime until the courts can sort it out, if the students are even willing to pose such a challenge to authority figures. That can take years -- just ask the two young women who once went to Everett High School who are now starting their second years of college.

The good news is that our journalism association is in discussions with AWSP to jointly work to educate administrators about what they can and can't do, and how to oversee free student speech without unnecessary censorship. This kind of collaboration would be a HUGE first step to keeping this sort of thing from happening.

And as for the narrow ruling, here's my theory: There were some behind doors compromises made by the justices to get this decision down on the anti-First Amendment side, and one of them was that the ruling be specifically narrow. I, of course, have no evidence to back this up, but it's not really characteristic of the court to take something like First Amendment principles and rule so narrowly -- it's kind of like creating exceptions to rules in your classroom. Before you know it, you've got 5,000 unenforcable rules.

Unless you're Clarence Thomas. Then you just want to flush the First Amendment down the toilet altogether. But we'll save that for another post.