Justice Denied: Bong Hits

I love Justice Stevens. I really do. But his dissent in the Bong Hits case is disappointing.

He says he agrees with the Principal's action in tearing down a 14 foot student banner, "Even if it had merely proclaimed, 'Glaciers Melt.'"

In this, he is with Justice Breyer, that action of pulling down an expression of dissent is justifiable in the name of maintaining order and keeping the students from becoming disruptive. So he is with the principle of Qualified Immunity."

He agrees students in school do not have the rights of adults.

He agrees that deterring drug use by schoolchildren is a valid and terribly important interest.

Of course, he does not address the issues of whether or not what is said in school, for or against drugs has any real effect on students' attitudes.

What he argues is the easy way out--a true but less important argument. "That the school may suppress student speech that was never meant to persuade anyone to do anything...This nonsense banner does neither, and the court does serious violence to the First Amendment in upholding--indeed, lauding--a school's decision to punish Frederick for expressing a view with which it disagreed."

He focuses entirely too much on the harmlessness of the banner. In doing so, he gets back into that morass of whether or not the student's behavior was "disruptive."

He cites prior opinions which say, "When the government targets not subject matter but particular views taken by speakers on a subject the violation of the First Amendment is all the more blatant."

He also says "Advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid." So he gets all legal about the difference between "mere advocacy" of illegal conduct and "incitement to imminent lawless action." He does get around to saying that nobody ever showed that even a banner which said, "Smoke Pot," would have resulted in anyone smoking pot, which of course one of the truths which underlies the absurdity and sanctimonious aspects of the majority opinion. Cause and effect, drug banner, drug use, ridiculous.

Finally, he gets around to saying, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

From here, he is able to go to the Baton Rouge sheriff who deemed an appeal to Black students to sit at a whites only lunch counter "inflammatory," and to put that in the same light as the principal who finds obnoxious a banner which had spoiled her great moment in front of the TV cameras.

So Stevens focuses not on the hardest question: At what point must a local state authority accept dissent from a member of a group she thinks she ought to control, which Justice Thomas says she ought to control?

Stevens does let lose the zinger: "Most students do not shed their brains at the schoolhouse gate."

He notes that dissent often simply reflects politically incorrect opinion which has been suppressed. "Just as prohibition int he 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...Even in high school a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views."



So the good justice finally gets to the real issue here, which is probably as important as the free speech issue. The larger issue is: What is real education and what is the real purpose of our schools? More specifically: How would a better principal have reacted to this banner?

Can you imagine if she had broken the students into discussion groups about this incident, if she had asked the questions:
1/ How can the action of this student be seen as part of a longer history of protest?
2/ How could he have made this a real protest rather than a silly stunt?
3/ How have non violent protest gestures worked or failed in history?
4/ What would have happened to Gandhi or to Martin Luther King in a society without the First Amendment, say in Nazi Germany, or Stalin's Soviet Union?
5/ What are the reasons marijuana is illegal?
6/ Are their good arguments for legalizing marijuana?
7/ What are the underlying reasons for the drug policies of the school board?
8/ What was the meaning for the school of the Olympic Torch parade?
9/ What is the value of school spirit, of cheerleaders of a school band?
10/ What was the value of turning students out on the street to cheer the torch parade?
11/ Is there any reason to not be supportive of the Olympics as they currently exist?
12/ What is the history of impropriety related to the Olympics?
13/ How have the Olympic games been used by governments in history?

Had this been the principal's approach, real learning in a real school might have occurred. Of course, this school would be an anathema to Justice Thomas, who sees public schools as little more than indoctrination factories, and this approach would not have satisfied Justice Roberts who cares only that the school day proceed without "disruption."

I suspect Justice Alito could have lived with this approach, and likely Justice Stevens and those who voted with him,

But most of all, we would have had a moment in this country where thought prevailed over emotion.