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.