Sunday, April 19, 2009

Bong Hits for SCOTUS

(This case was decided a while back, and I thought I had blogged it, but I can't find it. So I'm reproducing it.)

It appears that from today’s Frederick v. Morse ruling, the Supreme Court, led by the conservative branch, not only took leave of its senses, but overdosed on whatever medications they were on when they wrote this crock of a ruling.

Once again, the Supreme Court defies common sense.

The facts are simple: Student Frederick joined fellow students across the street for his high school in Juneau, Alaska, to watch the Olympic torch relay pass by. as it went by he unfurled a 14-foot banner that read” Bong Hits 4 Jesus”. Principal Morse saw the banner, crossed the street and tore down the sign and suspended Frederick for “promoting illegal drug use”.

The school upheld the suspension for those reasons. Frederick sued, lost at the circuit level, won by reversal at the 9th Circuit, and lost at the Supreme Court.

The problem with the ruling by Roberts for the Court is that it is based in fantasy.

First, they back the ludicrous claim by the school district that the message had to do with drug use. While it is certainly true that “Bong Hits” may have a drug connotation, it can also have a musical connotations, “Bong Hits” relating to ringing of a large bell. In fact within the context of this particular message it makes much more sense. Despite all that, Frederick himself stated that the message as meaningless and that he saw it on a snowboard. Obviously the school district and the Roberts Court know the state of Frederick’s mind better than Frederick himself.

Second, they claim the event was school-sponsored and school-sanctioned. That too is bogus. The event was sponsored by the United States Olympic Committee, not the Juneau School District. School sanctioning of an event is meaningless, because students attend events that schools do not sanction all of the time, without any restriction on students free speech. Political rallies, rock concerts, and professional sporting events come to mind immediately. The Court and the school district need to have this claim, however, in order to make their ruling: without the idea of school sponsorship or sanctioning they cannot claim ANY right to censor Frederick’s speech or suspend him.

Third, Frederick was not under any control of the school district at the time the event happened. Frederick had never arrived at school that day when the incident occurred and never even set foot one on the school grounds that day prior to the incident. He was as much of a passerby to the event as any non-student was that day. He was not in attendance at the school at that time, so his student status cannot apply in this situation. Because he never arrived at school prior to the banner being unfurled, the school had no control or custody over him; therefore they could not censor or suspend him at all. To imply otherwise would give the school district unfettered reign over a student in all places, from the home to the public square and everyplace in between. It’s a very simple concept the Court completely ignores, and is crucial to the case: was Frederick under school control at the time? Since he arrived at the event and not at school first, the answer is no, and therefore the school had no legitimate claim of control or jurisdiction over his actions.

Fourth, the Court claims, as does the school district, that the banner message was “speech or action that intrudes upon the work of the schools.” What is that work in this case? The school district claims that work is the education of students about the dangers of illegal drugs and their use. Despite the obvious crossing of the line from education into indoctrination that occurs in such a purpose (see more below), what does “Bong Hits” have to do with the Olympic Torch? This event had nothing to do with an educational setting, for starters, and was purely an extracurricular event. Whether it happened during school hours or not is irrelevant. Second, if the banner had read “Steroid Shots 4 Jesus” or “Bong Hits for Olympians” then maybe there might be a connection between the banner and the event. This event had nothing whatsoever to do with the work of the schools.

Fifth, the Court fails to properly distinguish the actions and the message conveyed by the actions. It is long settled in the courts that while both are relevant, they must be considered separately. Motive of action is what separates first-degree murder from manslaughter, for example. In this case, the Court tied the two together when they should not have, and in doing so arrive at exactly the opposite conclusion that they should have. His actions were clearly free speech on a public sidewalk outside of the legal control of school authorities. He was engaging in his First Amendment Rights. The message conveyed by his actions may have been deemed offensive by others, most notably Principal Morse, but feeling offense is no grounds for censorship! If Frederick has conveyed a message using “fighting words” or other context to incite violence, such as “Kill the Teacher” etc. then removal of the banner might have been appropriate, but only by law enforcement, since Frederick was outside school control at the time. But that didn’t happen either. But because the Court not only ignored Frederick’s state of mind in terms of the banner message but lumped the action and the context together, it arrived at the idea that the banner could be censored and the student suspended. That conclusion is devoid of logic and goes against the Court’s own reasoning in the landmark Tinker v. Des Moines case: in Tinker the court ruled that First Amendment speech is protected for students unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” What is the disruption here, except to Morse’s sense of order to the event? It certainly was no disruption to the Torch as it passed unimpeded, and that had nothing to do with the school anyway. It certainly did not disrupt the work of the school as school work was suspended for this event in the first place. If anything, the school work was disrupted by what Morse did after the fact as that made its rounds of the students as this type of juicy gossip does, so if anyone violated Tinker it was Morse, not Frederick. The Court then applies the absurd claim that the disruption was to the school’s ongoing effort on anti-drug indoctrination, but fails to explain why a differing opinion, if the banner could even be construed as one in the absurd manner the school district claims, is disruptive. The only logical explanation is that the work of the school in anti-drug indoctrination is to remove all discussion about the topic and require students to accept the propaganda the school presents at face value. But that is not education; that is brainwashing. Absent that discussion the education is absent, and Frederick’s banner could have served as an instructional tool and means for discussion and furthering the students’ education rather than becoming an object lesson in civics on how not to handle a free speech situation.

What the Court also loses in the context is the message itself. If Frederick has, as Justice Stevens state in his dissent, simply stated “Glaciers Melt”—would that have been taken to be a contextual message on global warming, part of Alaska’s tourism industry, or the laws pf thermodynamics? Would Morse have torn down the banner if it had said “Sugar Packets 4 Jesus” or some other nonsense beyond the nonsense of “Bong Hits 4 Jesus”? Hard to say, but it would not be surprising if Morse would. The Court uses the idea, though that it is a drug message to justify the censorship. That is beyond logical and places the First Amendment, as Stevens aptly points out in his dissent, in the realm of being limited by context discrimination, which is purely subjective. The Court itself has ruled that the context discrimination clearly violates the First Amendment. The First Amendment does not say, “Congress shall make no law prohibiting free speech unless someone in authority disagrees with what is expressed.” Yet the court reverses itself on that very point here.

As for Morse, she was completely in the wrong, and as a school administrator she should know what the limits of her authority are, and in this case she crossed them badly. She got so wrapped up in her own emotional reaction to Frederick’s banner that she abandoned logic and rational thinking and awareness of her own role and proceeded to turn a silly joke into a national case. She was best to leave it alone and then use it to promote a discussion on the topic afterwards. Any student will tell you that if a “cool” thing becomes a teaching tool, it no longer becomes “cool” and the whole idea dies off quickly. Morse should have been aware of this being a high school principal and used it to her advantage instead of acting like an idiot. But that does not mean she should be held personally liable as Frederick would contend. She was acting in her capacity as an employee of the school district and not as a private citizen and therefore any liability would be assumed by the district. On that point the Court was in unanimous agreement and was correct.

In summary, the Court was out to lunch on this one. Context and circumstances do matter, and the case was wrongly decided in a manner that does not bode well for students in this nation. The only solution to this ongoing and growing tyranny in our public schools is to remove the students from the schools and seek their education elsewhere, be it private or home schools. That or remove the public schools in favor of other means of education, which isn’t a bad idea either.

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