Late June always brings us a flurry of important Supreme Court decisions. That's the deadline for the Court to wrap up its work for the year, and that's when we get the most disputed cases. I've been waiting all year for the "Bong Hits" student free speech case, and now it's here. The result: the Court has told students to get lost.
Most people would say "free speech" when you ask them what rights and entitlements separate this country from, say, Cuba or Iran. But a surprising number of people also think that students should not have any free speech rights at school. School is for learning, they say, not student speech. But you can have both learning and speech at the same time, and the old cliche is true: you can learn just as much outside the classroom as inside the classroom.
The Bong Hits case started from a smart-ass student from Alaska carried a "Bong Hits 4 Jesus" banner on a field trip when everyone went to observe an Olympic celebration. Bong Hits, of course, refer to marijuana. While the banner was obviously nonsense, the school principal punished the kid anyway because it referred to drugs. As anyone in the legal profession knows, cases like this fall into a gray area because prior court decisions have not precisely addressed this issue. So the case went to court and the Supreme Court got involved.
Student speech rights reached their apex in 1969, when a very different Supreme Court decided that a school in Iowa could not punish students for wearing black armbands to protest the Vietnam War. The Court said that students have fewer speech rights in school but that they do not shed their constitutional rights at the schoolhouse gate. Ever since then, the Court has scaled back students rights, first in 1986, when it allowed school officials to punish a kid for making sexual comments in a school assembly, and again in 1988, when the Court made it easier for schools to censor student newspapers.
It was the 1988 student newspapers case which got civil libertarians riled. The principal becomes the unofficial editor of a school-sponsored student paper. The Court chould have given the principal some editorial control but at the same time given students the benefit of the doubt on these cases. But the Court went the other way, presuming the principal knows best.
It was the school principal in the Bong Hits case who decided to punish the kid holding the banner. From my vantage point, the "Bong Hits 4 Jesus" banner was satire, not to be taken seriously. After all, Jesus is not really taking any Bong Hits. The Supreme Court has actually given satirical speakers broad speech rights, ruling in 1988 that evangelist Jerry Falwell could not sue Hustler Magazine for a lurid and sexually offensive advertisement that any rational person would interpret as satirical.
While the Bong Hits 4 Jesus banner referred to drugs and the school can censor drug-related speech inside the building, that's as far as the school can go in this case, I thought. But I was wrong. The Court ruled that the principal reasonably interpreted the banner to refer to drugs and that was enough to punish the student, even though he carried the banner outside (in view of his classmates) and it was clearly satirical.
Every Supreme Court case offers something new in the world of constitutional interpretation. This time around its the notion that, in student speech cases, school authorities get the benefit of the doubt in determining what the student was actually saying. (Satire does not appear to have played any role in deciding this case, for some reason). While the Court agreed that the Bong Hits banner was subject to different interpretations and may have been "gibberish," the Principal gets the final say on what the banner actually conveyed. This line of reasoning gives greater authority to school officials to censor student speech. Not a good thing when students are taught that American society encourages people to speak their mind and convey their thoughts.
You may say, "but Steve, the Bong Hits kid was an asshole looking for publicity." Maybe so, but its the assholes who bring on the cases that protect civil rights for the rest of us. The kids in the National Honor Society sure as hell are not testing the limits on First Amendment speech. More broadly, this was another closely-divided Supreme Court ruling scaling back civil rights. Cases like this would not come out this way if George W. Bush did not have the opportunity to appoint Supreme Court justices, who hold the job for life. The thought of a guy like George W. making lifetime Court appoints is too much for me to bear, and decisions like this make it clear that it's going to be a long, hard road ahead.
