Antonin Scalia

Another Round of Bong Hits 4 Jesus


I'm not quite as pessimistic as Jacob and some drug reform activists about the Bong Hits 4 Jesus case (pdf).

All nine justices would have exempted the principal of the school from damages, and maybe I'll have to give up my libertarian library card, here, but I find it difficult to get too upset about that. The kid flat-out admitted he wasn't making a political statement. Rather, he held up the banner in an effort to do something outlandish that might get him on television. In other words, he was being disruptive. And he was punished for it.

Justice Thomas' opinion was most harsh, and frankly read rather school-marmish. Thomas argued he'd revisit the whole idea that students in public schools have any free speech rights at all, suggesting he'd overturn the 1969 Tinker case, which allowed two students to wear black armbands to protest the war in Vietnam. I'm not even sure this is all that unlibertarian an opinion. Thomas feels that kids in public schools don't enjoy the rights they have outside the school, or that adults enjoy. You can agree or disagree with that as far as it goes, but Thomas has been a fairly reliable supporter of free speech by adults, outside the school yard.

To me the most objectionable opinion was the opinion of the Court, written by Chief Justice Roberts and joined by Justice Scalia, which broadly interpreted the nonsensical bong hits sign to be condoning the use of illegal drugs. I'd probably have agreed with their opinion if they'd have ignored the drug issue, and simply argued that the sign was disruptive, not that there's some special evil that comes with advocating illicit drug use, or that this silly sign represents the gateway to lawlessness. The danger is that school districts will interpret Roberts' opinion too broadly, and behave as if Supreme Court has given its okay to step on drug-related political speech, too—for example, an essay condoning the legalization of marijuana.

But I'm not sure Roberts' opinion says that. And even if Roberts would were okay with such censorship, it's clear that at most only Scalia and Thomas would agree with him. If a school district were to ban advocacy of reforming the drug laws, it's clear that there are at least five and probably six justices ready to smack them down.

Justice Stevens (joined by Ginsburg and Souter) in fact wrote a pretty amazing opinion, one that could have been written by any activist for reforming the drug laws. He even recognized the similarities between drug and alcohol prohibition, writing:

But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs.

Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

I think this is heartening language to hear from three Supreme Court justices. And I would guess that Breyer generally agrees with the sentiment, as well (his opinion in the Bong Hits case dispensed with much of this discussion, and merely stated that the principal was covered by qualified immunity, and therefore shielded from damages).

Justice Alito (joined by Justice Kennedy) then wrote a concurring opinion quoting parts of the passage above from Stevens, specifically for the purpose of announcing that he would not uphold a public school's decision to censor student speech related to the drug war that was political in nature.

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

This case always seemed to me like an odd one for the drug reform movement to rally around. This was not an essay calling for the legalization of medical marijuana. It was a lame stunt to get noticed.

The fear was that the Bong Hits case would give the Supreme Court the opportunity give its okay for public schools to censor student political speech in favor of legalizing or decriminalizing drugs. While I'd have been more comfortable had the ruling come down the other way, it seems to me that there's much to take comfort in, here. Five justices have expressly announced that public school censorship of political speech related to the war on drugs won't stand. And it's likely that a sixth (Breyer) would join them.

That was the real issue of concern, here. To that end, you could make a pretty good case that yesterday's opinion was actually a victory for drug reform advocates, not a setback.

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  1. I still believe suspending the student was overly harsh as there were many better options to deal with him (assuming this wasn’t the last stunt in a series). This wasn’t a free speech issue to me, it was an overly cruel punishment issue, assuming the suspension caused him to miss too many classes to not repeat the year. I miss the days when the principal could have just taken the sign, smacked the student on the back of the head and moved on without making this a drug war example.

  2. The kid flat-out admitted he wasn’t making a political statement.

    Since when does your [declared] subjective intent determine the extent of your First Amendment rights?

  3. This kind of makes me want to send the kids to school wearing shirts that say “Legalize Marijuana”.

  4. Since when does your [declared] subjective intent determine the extent of your First Amendment rights?

    Pretty much always.

  5. The majority opinion could just have made this a “time place and manner” issue and been done with it. I wouldn’t have been happy about that, either, but that would have been better than what they actually did.

    The ruling that drug use advocacy is not political speech cannot be contained to this one decision, it cannot be contained to just students, and the distinction the justices tried to draw between drug use advocacy and legalization advocacy isn’t stable [and that shouldn’t be surprising, given its absurdity].

    Anyone who doesn’t think this precedent will be used to arrest participants in a legalization rally is crazy.

  6. Since when does your [declared] subjective intent determine the extent of your First Amendment rights?

    Agreed. Whether or not he was trying to make a political statement is irrelevant. Are we to say that promoting “illegal drug” use as symbolism is ok, but not if it’s simply part of an attempt to get on TV? I suppose it also wouldn’t have been ok for him to hold up a sign that said “Circle Jerk for Mary,” since it is both offensive to many people and, after all, he wasn’t even trying to make a political statement.

  7. Anyone who doesn’t think this precedent will be used to arrest participants in a legalization rally is crazy high.

    Edited for context

  8. If this protest is held by students during school hours on campus, then I would agree.

    I don’t think this ruling can be extended to rallies in general.

  9. I haven’t read the opinion, but I don’t doubt that it isn’t as egregious as it initially sounded. My concern, however, is that this is yet another results-oriented decision, where the content of the speech is at issue, regardless of what the ruling says.

  10. My major concern with this case is that it takes a situation of legalized compulsion (school attendance) and uses it as a justification for extending the power of the government beyond the scope of that limited use of compusion.

    What would happen if a bunch of kids ditched school to go to a concert, miles away from the school, and at that concert they held up a sign saying “Bong hits 4 Jesus”? How far can the school system extend this new “right” to determine what is and is not acceptable speech off school grounds?

  11. a public school may restrict speech

    Sorry, but that’s totally fucked up and unconstititional. The fact that there’s such convoluted rationalization about this shows how people already know this restriction of speech was wrong.

    And the kid wasn’t being disruptive. There was no coercion and people could have simply looked at the sign and ignored it. Unless they were interfering with people’s actions, there is nothing illegal taking place.

    Here’s where Thomas is completely full of shit:
    “In light of the history of American public education…”

    Since when did the constitution allow for public education to trump the bill of rights? Because it’s OK to coerce children to attend school?

    As I’ve said before, the more you take away freedom from children, the less inclined they’ll contest such restriction when they become adults.

    Freedom – it’s not for the children.

    I disrespectfully dissent.

  12. Yeah, I feel you Radley. But I think your silver lining is just a reflection off the rain.

    I might be OK with the “disruption” argument, if he was disrupting school (I don’t buy “we can oppress public speech because he was only in public by our favor”). Or, more importantly, if not for the claim that “speech against official policy is disruptive”.

  13. Read the decision first please.

    The SC ruled that Frederick mingled in the crowd with students and teachers, and the teachers were responsible for maintaining order. Therefore Frederick was a student attending a school function.

    Given this finding and previous court rulings that allow schools to control student speech, the outcome was pretty easy to predict. That is why the content of the message is relevant.

    If the student had been making a clear attempt to protest something, then previous rulings would have prevented the school from intervening. Since, Frederick was just trying to grab attention, the school had a sound reason to declare he was just being disruptive. And the courts have previously ruled that schools can supress disruptive speech that has no clear politcal message.

  14. …this SCOTUS “drug” issue is merely a gorilla-dust obfuscation of the fundamental constitutional issue of mandatory government schooling.

    Quote from this SCOTUS ruling:

    _”…The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them..”_

    What state or federal constitutional clause grants government bureaucrats (public school teachers/administrators/politicians) mandatory direct physical control over all Americans in their youth ??

    Who has the specific constitutional authority to dream up & enforce “student-conduct-rules”, ‘approve social events’, or ‘supervise’ free American citizens ?

    [ ” The main function of the public school is not education but social control. Using schools as institutions for social control makes them de facto criminal-psychiatric facilities, depriving children of liberty. Schools are prisons, to which children are sentenced by compulsory education and truancy laws. “]

    {– Dr Thomas Szasz}

  15. Since when does your [declared] subjective intent determine the extent of your First Amendment rights?

    It doesn’t determine the extent of your 1st Am rights, though it may determine whether your speech falls under them.

    In any case, the reasoning of the court was that a reasonable observer would interpret the sign as encouraging illegal activity, and the school has legitimate interest in suppressing that kind of speech at its functions.

    I’m still wondering what the libertarian take would be if the banner had read “Smash BMW Windshields 4 Jesus”. As I’ve said before, just because you think drugs should be illegal doesn’t mean the rest of society is supposed to act as if they are. If you want kids to be able to hold up this sign at school functions, get the drug laws changed.

  16. Anyone who doesn’t think this precedent will be used to arrest participants in a legalization rally is crazy

    Here we go with the Chicken-Little-isms! This case involved kids at a school function, and a non-political message promoting illegal activity. It has little bearing on adults on the street.

    If the rules that apply to kids at a school function apply to adults on the street, we’re already screwed. The govt could force adults to attend stupid assemblies, lock the doors, and force them not to talk.

  17. What state or federal constitutional clause grants government bureaucrats . . .

    The only thing more abused than the commerce clause would be the welfare clause, in my opinion.

  18. Uh, the second to last post should read:

    just because you think drugs should be legal doesn’t mean the rest of society is supposed to act as if they are.

  19. crimethink

    “force them not to talk”

    e.g. forcing them not to talk about voting for specific political candidates near an election?

  20. The govt could force adults to attend stupid assemblies, lock the doors, and force them not to talk.

    They call that “jury duty.”

  21. Seriously, though. With this ruling in mind, imagine the following scenario:

    Local High School sends a photographer and a reporter from the school paper (both students) to cover a political rally in a park downtown. Ned Student, a student at LHS, also attends the rally and unfurls his banner which reads “Bong Hits 4 Jesus,” hoping to be on television. The principal of LHS, because a) the rally was held during school hours and b) there were other students present and approved by the school, suspends Ned.


  22. Radley:

    You seem to ignore the context. First the kid was a legal adult, 18 years of age. Second, he was not on school property. Nor was he actually as a “school event” as has been made to be the case. He was across the street from the event. He was not let of school to attend the event as he was not in school that day and went to the public torch running directly from his home.

    So what wasn’t involved here was that it was a minor, that it was on school property, or that it was actually at the school event. It was visible to people at the event but not at the event.

    The school did not organize the torch marathon that was part of the Olympics. All they did was allow students to go outside and watch it. And since this student was across the street I have to ask what authority the school had to limit the speech of a legal adult, off school property merely because his sign was visible to people on school property

  23. Just read Thomas’s opinion. Must say that his opinions are always pretty interesting to read.

    Most of his argument was based on the principle of loco parentis, meaning that the school is responsible for being your parent while you are at school. This responsibility has been used in the past to sue a school when a kid was injured coming to/from school, so I can see it reasonably being applied in this case.

    Even though the kid was 18, loco parentis still applies when he chooses to attend school. He could always drop out, then he wouldn’t face the suspension.

  24. No matter how narrowly you want to read the opinion (Alito’s is the controlling opinion since it is the narrowest ground a majority of judges would agree on, or so it is argued), the bottom line is it stands for the principle that the first amendment treats “drugs” differently. Saying anything other than government approved prohibition talk, clear viewpoint discrimination, is not protected, or at least not as protected as other political speech. While the facts of the opinion are confined to schools, it would certainly stand for the proposition that a anti-prohibition poster could be barred from public property. Oh wait, they’ve already done that. Well, it could be used to support censorship of anti-prohiibtion talk on a cable tv show.

  25. I’m all for free speech but it has to have limits. Example, you can’t yell fire in a theatre, you can’t say the word bomb, regardless of the context, in the vicinity of an aircraft, etc. You do not have the right to question the governments laws, particularly drug laws, this is a fair restriction on free speech in order to be sure the right message is sent.

  26. the nonsensical bong hits sign

    Why is this sign described as nonsensical?
    I keep hearing the “what could it mean?” argument.

    I see no reason to restrict this kind of speech, but why pretend it is nonsensical speech?

    Even the CJoSCOTUS was hip enough to cypher the message…it seems disingenuous to claim the ambiguity.

  27. This kind of makes me want to send the kids to school wearing shirts that say “Legalize Marijuana”.

    But in that case it’s not the kids’ freedom of speech that’d be at issue, would it? Rather, it’d be a matter of your liberty to treat your children as billboards.

  28. First the kid was a legal adult, 18 years of age. Second, he was not on school property. Nor was he actually as a “school event” as has been made to be the case. He was across the street from the event. He was not let of school to attend the event as he was not in school that day and went to the public torch running directly from his home

    Everyone seems to be focussed on the words on the banner, when it is the decision that he was a student at the time of the incident that really decides the case.

    The justices ruled that he was a student and was attending a student function even though he was an adult, was not on school property, and was viewing an event not arranged by the school.

    Yet, he joined a crowd that included students and teachers. So the SC ruled that he joined a school function, was acting as student, and was therefore restricted by student conduct rules.

    I disagree with the reasoning behind this decision. But once this part of the decision is made, the rest of the decision is straightforward.

  29. Here we go with the Chicken-Little-isms! This case involved kids at a school function, and a non-political message promoting illegal activity. It has little bearing on adults on the street.

    You know, I would agree with this sentiment if schools weren’t already trying to suspend kids for things they post on their mySpace pages.

    It may not affect “adults” on the street, but it does seem to continue down the path of expanding the reach of the school’s ability to penalize students (adult or other) for the goings on away from school.

  30. Neu Mejican, I think the “Bong Hits for Jesus” sign is described as being nonsensical because it’s a backformation from a popular saying that has already spawned a host of imitations–but it doesn’t make sense in the context of the original slogan.

    The original version, as I understand it, is “Jews for Jesus.” It describes a group of people who are Christian, and it get’s its tang from the fact that the group are people who would not popularly be assumed to be Christian.

    Since “Jews for Jesus” became well-known, other formations, some sincere and some ironic, have been frequent: Bikers for Jesus, Gays for Jesus, Cowboys for Jesus, etc.

    I don’t know of any cases where the “X for Jesus” formula is supposed to be translated as “Perform X for Jesus.” So “Bong Hits for Jesus” wouldn’t mean “Smoke Pot for our Lord” but “Christian Bong Hits.” Which doesn’t make any sense.

  31. The sign advocates amused disdain for advocacy. It’s nonsense, but it’s pointed nonsense, like “Jeder Mann sein eigener Futbol” or “Pave Uranus.” The Court, Balko, and other politically interested parties, devoted as they are to wonking themselves into red-faced public ecstasy over whatever law catches their eye, can’t even read it. It’s not in their language.

    So it says nothing. Or if it does, it’s not “political.” Or it says “Smoke Pot.” Whatever. It’s banned. Or not “protected.” As if there’s a difference. Anyway, the kid said it’s not “political.” He wanted to be on TV. And not at a Congressional hearing on C-SPAN or anything. So fuck him. He confessed. We won’t analyze that. He’s not one of us.

    (This comment advocates disdain for you.)

  32. parse,

    No pun intended, but you’re parsing an awful lot. Just because “Jews for Jesus” and “Bong Hits 4 Jesus” both contain “for Jesus” (and not even in the same form!) doesn’t mean one has anything to do with the other. And it’s not like “Jews for Jesus” is such a pervasive expression in our society that anything resembling it brings it to mind.

    By your logic, if I have a sign saying “March for Jesus”, I’m claiming that the act of marching believes in Jesus, a nonsensical statement. When to any reasonable person I’d be encouraging people to march for some cause related to Jesus.

  33. Parse…

    pretend a sign-bearer’s last name is ‘Kill’

    Pretend I don’t know that.

    How then to interpret the sign ‘Kill for Jesus’?

    More than one stone required for those birds, eh?

  34. Parse,

    I’ll continue this just cuz I am very interested in semantics and construction grammar in general.

    “Bong Hits 4 Jesus” is not a variation of the “Jews for Jesus” construction (crimethink has already covered that).

    But it could be related to other idioms.
    The first one that comes to mind for me is a TOASTING DEAD COMPATRIOTS construction/schema with “toast” = “bong hit”

    So it is saying “Raise a glass for Jesus” but replacing “drink” with “Bong Hit.”

    Not nonsensical at all.

  35. Daffy, crimethink and Neu Mejican, my mistake was not parsing too much, but parsing too little.

    “March for Jesus,” “Kill for Jesus” are in the form “Verb for Jesus” and “Toasting for Jesus” is, I think “Gerund for Jesus.” Therefore, they are very sensibly saying “Do something for Jesus.”

    “Bong Hits for Jesus” is in the form “Noun for Jesus.” Crimething says it’s not in the same form as “Jews for Jesus,” but it is. But don’t trust me. Here’s a more expert analysis.

  36. parse,

    I may not be a fancy high-fallutin’ expert, but “march” is also a noun, right? And, in the end, what matters here is what people perceive the message to mean, and there’s no way on earth that most people are going to see “Bong Hits 4 Jesus” as a play on “Jews for Jesus”.

  37. crimethink, march is also a noun, but “bong hits” is not a verb. If you think “Bong Hits for Jesus” reads “Take a bong hit for Jesus,” what do all the other “X for Jesus” phrases where X is a noun mean? The link I provided has nine of them. What does “Bikers for Jesus” mean–read a bike for the lord? How about “Nerds for Jesus”–does that mean get down on your knees and give somebody a wedgie?

    If you don’t believe “Jews for Jesus” has spawned snowclones, google “* for Jesus” and see how many of the million and a half hits read like iterations of the original, which still sits atop the google pile.

  38. Parse,

    It is not the degree of parsing that is at issue, it is the skill.

    As long you take a syntactic approach to the analysis of idiomatic expressions, you will always miss the mark. The semantics of an expression like “Bong Hits for Jesus” are under-determined by the syntactic structure. You can’t just replace one [noun] with a different [noun] without changing the structure of the construction.

    If, as I think is true, “Bong Hits 4 Jesus” is a variation of the TOASTING DEAD COMPATRIOTS construction, then “Bong Hits” are certainly nouns, but that doesn’t mean that any old noun can be substituted. You would need to restrict the class of allowable nouns to those which count as imbibed units of intoxicant used in toasting (shots, bong hits, drags, blunts, etc…).

    So, back to your parse. “Bong hits 4 Jesus” is a specific construction that takes the form

    [noun=imbibed unit of intoxicant used for toasting] for [proper noun = name of dead compatriot].

    There are, of course, closely related constructions with subtle variations of this construction that might be closer to the mark for this particular banner.

  39. This is the most frightening thing I have ever seen in the news. We saw our rights trampled on today. We have witnessed the death of our first amendment at the hands of those sworn to protect it. Desecrated, spat upon at the request of a high school principle. I am sickened by this. Now I know for certain that we are loosing our country. Everything we stand for is at risk. When we loose the right to question the law of the land at a public institution we have truly lost freedom that our ancestors fought for. Lady liberty is lies on her death bed while the Fatherland waits patiently. Perhaps there may still be time? There may still be time to save our freedom.


    I CHALLANGE EVERY HIGH SCHOOL STUDENT in this country to make a copy of this banner and display it at your school as soon as possible. And remember, when they come to tear it down and trample on your Bill of Rights, this time it IS A POLITICAL STATEMENT. Don’t let your freedom die this way.

  40. Parse,

    to your link…

    “Items for Jesus
    Jacuzzi’s [sic]

    This last type seems to be less common, although it’s by no means rare, and it’s the category into which “Bong Hits 4 Jesus” falls.”

    Even your source finds it easy to interpret. No problem fitting it into an easily parsed semantic construction. And he is using a very imprecise construction (i.e., “[item] for Jesus”). His would be a more schematic description of a class of constructions that my TOASTING construction belongs to. Corpus-based approaches to this type of thing are a great place to start.

  41. All of the bong hits I take are bong hits for Jesus. The theory that Christianity is a cannabis cult out of Hellenistic Egypt isn’t any more nonsensical than any other interpretation of the Christian religion. That is, unless you believe unquestioningly the Fox News of ancient religious texts.

    Illicit drug users are much more akin to early Christians than their nominally Christian persecutors. If you’re interested we have a TV show about it:

  42. “Even though the kid was 18, loco parentis still applies when he chooses to attend school. He could always drop out, then he wouldn’t face the suspension.”
    Now that’s the most honest exposition of what a libertarian finds the essence of liberty to be in a while. Is the school/business/community making your life hell? Well, you can always move brother. To do otherwise would limit the precious, precious freedom of the school/business/community to boss others around.

  43. I thought it meant when Jesus came up in the batting order, Bong pinch hit for him.

  44. Robert, you just made my day.

    I can’t believe how seriously people took this whole thing. I figured the kid was just making a joke (and an ass out of himself). The Supreme Court really cares?

  45. I like Robert’s interpretation too.


    Given that parody is protected, it seems the lawyers for the kid took the wrong tact with this case. They should have had cheech and chong on the defense team.

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