I was in criminal court once in a small town, sitting in the judge's chambers with other lawyers going through the cases, when the judge was reading out loud some criminal charges against a teenager. The case had to do with marijuana, and the old judge looked at me (although it wasn't my case) and said, "What the hell is a bong?"

The Supreme Court certainly knows what a bong is. Yesterday, the Court heard argument in the "Bong Hits 4 Jesus" case, where a high school kid was disciplined for unfurling a 14 foot banner off-campus during a field trip. The banner -- which read "Bong Hits 4 Jesus" -- caused a stir, and the school punished the smart-ass for conveying a drug message during a school event.

The Bong Hits case is attracting a lot of attention because the Supreme Court does not hear many student speech cases, and this case does not fall neatly within the precedents governing the right of public schools to censor students. In 1969, the Supreme Court said that students could wear anti-war armbands at school and engage in other political speech so long as it does not disrupt the educational mission. This was a lenient approach to student speech, but the Supreme Court reigned in that standard in the 1980's, ruling that schools could censor obscene and offensive speech and also freely edit school-sponsored student newspapers.

The question for the Court in the Bong Hits case is where does that case fit within the precedents? Commentators are wary and think the Court will use this case to further reign in student speech and give school administrators more authority to censor provocative students. The Bong Hits reference does not help, as the Court gives the benefit of the doubt to school administrators in searching students for drugs. But the fact that this banner was unfurled off campus is a point in the student's favor.

One Court watcher interpreted the oral argument yesterday as follows:

The Supreme Court on Monday toyed with the notion that public school officials should have added discretion to censor student speech that they may interpret as advocating use of illegal drugs. But this was only a flirtation, not a warm embrace. During the argument in Morse v. Frederick, a clear majority of the Justices showed significant skepticism about creating a wide exception to the curb on suppression of student speech that the Court spelled out in 1969 in Tinker v. Des Moines School District

On the other hand, according to another Court watcher, only the most conservative Justices on the Court seemed focused on reigning in student speech:

The only Justices who appeared to be sympathetic to the top-side theory I blogged about this morning -- that a school district can suppress any student speech "inconsistent with the school’s basic educational mission" -- were the Chief Justice and Justice Scalia, although Justice Scalia appeared to be partial to a somewhat narrower theory that the school can penalize any student speech advocating unlawful action (as opposed to, e.g., speech advocating a change in the law). (It's possible Justice Thomas might also be inclined to a theory along these lines, but he did not ask any questions.) Justice Alito commented with respect to the broader top-side argument: "I find that a very, a very disturbing argument, because schools have and they can defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that's inconsistent with educational missions."

Reading the oral argument transcript last night, I was struck at how you can dance on the head of a pin for one hour and lose sight of the big picture: the high school kid had this large banner with a satirical message off-campus which was plainly visible to his classmates during a field trip celebrating the passing of the Olympic Torch. Yes, the message had a drug-reference, but nothing was disrupted and it was satire. No one during the argument said anything about satire, but the Supreme Court over the years has actually been favorable to extending First Amendment rights for satire, even offensive satire, like Hustler Magazine's parody of Rev. Jerry Falwell, depicting him as an incestuous drunk who had sex with his mother in an outhouse. That was a real case, Hustler v. Falwell (1988), and the Supreme Court held that Falwell could not sue Hustler for defamation because everyone knew the parody wasn't real.

If the Supreme Court says that schools can reign in off-campus student satire, then we are in big trouble. A ruling like this can stop underground newspapers and other creative student speech at the whim of a stuffy school principal which can shoot first and ask questions later. Your instinct in reviewing this case might be that the student with the Bong Hits banner is just a smart-ass who need a good whippin'. But his case will affect everyone, grades 1 through 12. What a lessen in power and authority these students will learn if the Supreme Court rules against the smart-ass.