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Wednesday, May 4, 2016

Ross Rambles: Setting them judge people straight

Tuesday, July 17, 2007

(Photo)
The U.S. Supreme Court should have consulted me prior to making a decision in the case of Morse v. Frederick.

I am qualified to advise the court since I studied law in college. I took a course titled The Law of Something or Other. I don't remember the actual name of the course, but I'm almost certain that I passed it.

As with others in my profession, I am interested in freedom of speech issues. The Morse v. Frederick case does not directly affect journalism but could be an indicator of the Court's overall view on freedom of speech.

(Actually, the case is more amusing than significant, but I'm in my pontificating mode now, so don't try to stop me.)

A lawsuit by the family of Joseph Frederick claimed that a 10-day suspension of Frederick from high school in Juneau, Alaska, in 2002, violated Frederick's constitutional rights under the First Amendment.

Students had been allowed outside the school to view an Olympic torch being carried past the school. Frederick and others who were standing across the street from school property unfurled a 14-foot banner that said, "BONG HiTS 4 JESUS."

For those who have missed the previous four decades, a 'bong' is a device for smoking marijuana and a 'hit' is an inhalation of marijuana.

Principal Deborah Morse ordered that the banner be taken down. Frederick refused and was subsequently suspended.

Although the students were off school property, the viewing of the Olympic torch occurred during the regular school day and was regarded by the school as a school activity. Rather than get bogged down in technicalities that have nothing to do with the case's value as precedent, let's accept the conclusion that the school retained authority over the students at the time.

The lawsuit by Frederick relied on the 1969 case, Tinker v. Des Moines School District. In that case, the Supreme Court ruled that students had a constitutional right to wear black armbands to school in protest of the Vietnam War and that the Des Moines School District violated those rights by suspending five students.

In the recent decision, the court decided 6 to 3 to uphold the position of the principal in Juneau that the suspension of Frederick was justified Chief Justice Roberts wrote the majority opinion, concluding that the banner promoted illegal drug use, clearly in violation of school policy, and therefore was outside of guaranteed free speech as addressed in Tinker v. Des Moines School District.

I do not agree with Roberts' conclusion. I have more sympathy for, although not total agreement with, the concurring opinion by Justice Thomas. Thomas concurred with the majority, but not on the same basis as Roberts. Thomas believes that the Tinker decision should be overturned because students have no inherent free speech rights at school.

No rational person believes that students have absolutely unrestricted free speech at school. The Court has ruled that what is generally regarded as obscene utterances or lewd displays may be restricted. A school's right to require silence during specific periods has never been challenged

These are considered separate matters from those addressed in either the Tinker or Frederick case and will not be addressed further here other than to say it is understandable to feel that the natural authority of a school district extends to prohibiting any controversial speech or use of symbols at school. However, a district cannot be viewed as favoring one symbol or spoken philosophy over another. The school would need to ban all of it -- black armbands, swastikas, flag pins, crosses, stars of David, or any other philosophical indicator on clothing or possessions in the school.

The majority opinion in the Frederick case did not overturn Tinker. The Frederick majority decision relied on a conclusion that the two cases were different because the banner advocated an illegal act.

This conclusion was reached despite Frederick's assertion that the phrase "bong hits 4 Jesus" didn't mean anything. It was simply a ploy to get on TV, according to Frederick. Roberts didn't accept this, concluding that the banner must have promoted an illegal act based on "the paucity of alternative meanings."

Of course, no alternative meaning was offered since it was Frederick's position that there was no meaning.

If we are to pick an intended meaning out of the air, as Roberts feels entitled to do, we could as plausibly argue that the banner advocated legalizing marijuana. If the banner advocated a government policy change, the banner becomes constitutionally protected speech.

And if all phrases have meaning, every part must have meaning. What does '4 Jesus' refer to? Obviously, '4' is an informal contraction of the preposition 'for'. The phrase 'for Jesus' has three possible meanings - 'on behalf of Jesus', 'in favor of Jesus' or 'to be used by Jesus.' In the first two cases, the phrase does nothing to clarify whether the banner advocated an illegal act, but does much to support Frederick's assertion that the whole thing is gibberish.

In the third case, even if we were to assume this to be advocacy of marijuana use by Jesus (not necessarily a valid assumption), judging the legality of the act depends on the context of time and place of the marijuana use. We cannot assume that Jesus is currently on the Earth, subject to the laws of a particular nation, so we cannot assume that the use of marijuana by Jesus would be an illegal act.

Of course, this speculation about Jesus smoking marijuana is ridiculous. It is also ridiculous for the chief justice to assume that he can attribute meaning to a phrase that apparently has none.