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POLL: "Bong Hits" Decision a Hazy Mistake

"Bong Hits 4 Jesus" Does Free Speech Need Limits


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Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
When a reckless Supreme Court held last Monday in favor an Alaska high school principal who suspended a student for displaying his “BONG HiTS 4 JESUS” banner at a school event, they revealed a serious lack of legally consistent and scrutinous thought, and Chief Justice John Roberts in particular dropped the ball.

Is it permissible for a school to protect its students from speech that encourages them to use illegal drugs? This seems to be the central question the case has made people ask, and a sound argument can be made in either direction. But the Court failed to make either argument in a strong enough manner, resulting in precedent that is unclear, unfair and needlessly disruptive to the ongoing dialogue about freedom versus safety.

Reflecting on his first term in an interview with The Atlantic earlier this year, Roberts explained where he wants to take the Court in intelligent and convincing terms: the Court functions best and most legitimately, he argued, when it acts as a single, unified institution of critical thought, rather than as a collection of conflicting egos.

“I think that every justice should be worried about the Court acting as a Court and functioning as a Court,” Roberts said, “and they should all be worried, when they’re writing separately, about the effect on the Court as an institution… I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”

During his first term, it looked like Roberts was well on his way to building the kind of cooperative, reasonable Court he says is his priority – his first term boasted the longest string of unanimous decisions in recent history. But the term ended on more tumultuous ground, with a handful of controversial cases that split the court down the middle.

The decision in Morse v. Frederick – the “BONG HiTS 4 JESUS” case – represents an even deeper slide. Not only was the decision a split 5-to-4 vote, but five justices wrote opinions. More than half the Court found the issue so divisive, and the majority opinion so inadequately reasoned, that they had to chime in with their own two cents, severely weakening the holding’s strength as precedent and muddying its actual, real-world meaning.

The chief justice gets to choose, when he sides with the majority in a Court vote, which justice will write the opinion. Roberts explained in the Atlantic interview that he planned to assign opinions to those he believed would write in the most convincing manner, building unity on the Court and reducing the number of dissents and separate concurring opinions.

Roberts chose himself to write the majority opinion this time, and he clearly failed to write it convincingly. A distillation of his argument may be: schools have a right and responsibility to protect children entrusted to their care, and drug advocacy is one of the dangers from which they need protection. Roberts construes and defines Joseph Frederick’s nonsensical “bong hits” message as drug advocacy, writing, "Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs." He therefore finds in favor of the school for censoring Frederick.

Justice Clarence Thomas writes a separate concurrence, pointing out wisely, “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't.” But Thomas’ solution is that students should have no constitutional right to freedom of speech at all, because teachers were historically given all the rights of authority over children that parents have – and the First Amendment makes no promises to keep parents from shutting up their kids.

Another separate concurrence, written by Justice Samuel Alito and joined by Justice Anthony Kennedy, refutes Thomas’ ridiculous implication that because teachers have parental roles they are no longer agents of the State (and therefore subject to relative limits on their authority).

Alito writes further that, in agreeing with the Court that schools can restrict student speech that advocates drug use, he sees “such regulation as standing at the far reaches of what the First Amendment permits,” demanding that “the opinion does not endorse any further extension” of schools’ power to censor their students.

All of which could easily have been folded into the majority opinion, increasing the clarity of its impact, the narrow focus of its authority and the strength of its precedent. That Roberts refused or failed to do so in an opinion he authored himself is startling, because judicial restraint, narrowly tailored opinions and the Court’s unity of message have historically been top priorities for him.

Justice John Paul Stevens, in writing the dissent, has been quoted all across the news media for his accusation that the holding “does serious violence to the first Amendment,” but few have commented on his precise reasoning.

Stevens argues that, even accepting the idea that schools should be able to censor drug advocacy, there are no grounds to make that decision in the facts of this case. “t is one thing to restrict speech that advocates drug use,” he writes. “It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively – and not very reasonably – thinks is tantamount to express advocacy.”

This strikes at Roberts’ reasoning in ways it cannot logically withstand; his argument that the “bong hits” message amounts to drug advocacy is flimsily made, essentially shrugging his shoulders and admitting, “It’s not really clear what this kid is trying to say, but I can’t think of anything it could mean besides advocating drug use, so we’ll go with that.” His eagerness to attribute concrete meaning to a message he acknowledges himself is cryptic reveals serious weakness in the critical thinking behind the Court’s opinion, and a failure on Roberts’ part to live up to the standards of judicial restraint for which he is meant to be famed.

Indeed, as Stevens writes, “The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.”

Stevens argues further that this weakness in logic is likely to frighten students. If the Court had made this decision in a case where the message was clear – if the banner said, “Bong hits at my house after the parade,” for example – the rule in turn would be clear, and students could still freely discuss drug-related issues without fear of reprisal. But the Court’s willingness to punish nonsense speech will leave many students unsure of where the boundaries of acceptable drug talk lay, and they may therefore choose to play it safe and not speak at all.

This kind of dampening affect – a wilting of the people’s impulse to express themselves when it counts – is exactly the impact a meaningful interpretation of the First Amendment seeks to prevent, in schools or otherwise. Given that part of the danger drugs can pose to students is their supposed ignorance surrounding the subject, stifling and intimidating their potential discussion of drug use is a huge mistake.

Roberts fails to address this danger in the Court’s opinion, except to point out that Frederick’s banner had no clear political or religious meaning, implying it is therefore not subject to the same freedom that issue-focused speech would supposedly have enjoyed.

In spite of all this, no reasonable person could argue that school officials don’t have a need to maintain discipline. In an opinion that both concurs and dissents from the majority in part, Justice Stephen Breyer writes, “What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing?”

But Breyer also acknowledges that protecting the school's principal with a new exception to the First Amendment is a tricky proposition, with little clarity offered by the facts or reasoning in this case – as an example, he asks, “What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain?”

The implication, Breyer writes, is simple: “[R]egardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason for us not to decide the issue unless we must.”

Breyer suggests the school principal be protected from Frederick’s lawsuit on the grounds of an existing qualified immunity that protects teachers and other government employees from civil rights lawsuits unless their behavior violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Since a student’s right to unfurl a big fat “bong hits” banner is not clearly established, the Court can protect the principal without fooling around with the First Amendment.

All that would leave to wrap up would be the student’s request for “injunctive relief,” that is, his right not to have been suspended. But by all accounts – even those included in the Roberts opinion – Frederick was being rowdy and belligerent anyway, so the suspension could be protected on those grounds.

Roberts replies in a footnote that this solution isn’t suggested anywhere in the court records for the case, but shouldn’t that be an easy fix? Doesn’t the Supreme Court remand cases back down to lower courts for “do-overs” all the time, often with specific suggestions just such as these?

Roberts doesn’t mention this obvious solution, which is alarming, since he wrote in a 2004 case that if a court can find "sufficient ground for deciding [a case,] the cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more -- counsels us to go no further."

In times of judicial doubt such as this case clearly provided (as again indicated by the number of separate opinions), the Court should settle the case based on the reasoning that has the least possible impact on future cases, and save the grand sweeping gestures of jurisprudential glory for situations that are clear cut and show issues of obvious, gross injustice.

Nothing about this case clearly presented the question Roberts answered in his opinion. His Court’s handling of this case weakens their legitimacy and their reputation, and I can only hope he holds himself to his own professed standards with more rigor in the future.



News Hawk- User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Xpress Online
Author: Sean Maher
Contact: seanmaher1@gmail.com
Copyright: Journalism Department - San Francisco State University
Website: "Bong Hits" Decision a Hazy Mistake
 

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
Re: OPINION: "Bong Hits" Decision a Hazy Mistake

AMERICA’S precious freedom of speech — a cornerstone of democracy, guaranteed in the First Amendment of the Bill of Rights — took a hit from the U.S. Supreme Court last week.

Conservative justices ruled 5-4 that free speech gives big-money interest groups a right to buy last-minute smear ads before an election — but also ruled 5-4 that free speech doesn’t let a high school student hold up a sign with the nonsense message, “Bong Hits 4 Jesus.”

On a sidewalk across from his Alaska school, the student unfurled a banner when the Olympic Torch Relay ran by in 2002. He said his joke message was designed to get him on national television. But school authorities suspended him. Now, America’s highest court has upheld his suspension.

Dissenting from the majority, Justice John Paul Stevens wrote: “The court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students.”

Concurring with the majority, Justices Samuel Alito and Anthony Kennedy stated the opinion “goes no further” than prohibiting speech that could be interpreted as advocating illegal drug use and does not restrict speech on political or social issues.

Did Frederick’s oblique reference to smoking marijuana really justify a ruling that undercuts free speech?

Ironically, on the same day, the Supreme Court overturned its own 2003 ruling barring corporations and labor unions from buying “issue” ads late in political campaigns — ads designed to circumvent federal laws prohibiting them from giving money directly to candidates.

Led by Chief Justice John Roberts, the court voted to let “issue” ads run, contrary to the McCain Feingold Act. The impact of this ruling should become clear during the 2008 presidential and congressional elections.

The four justices who dissented warned that an explosion of late spending for nasty ads may further the public’s cynicism about elections and politics.

Free speech lies at the very heart of personal liberties guaranteed to Americans. But the Supreme Court’s 5-4 majority intruded on this human right by clamping down on silly adolescents while, at the same time, granting a freer hand to moneyed groups buying smear ads just before elections.

The Charleston Gazette - Opinion
 

Ronnie

New Member
:60:yeah, I guess so. but then maybe america has gotten too big to be totally free, you think? I mean we all love freedom, write poems and shit about it. but in absolute freedom there would be a cost, possibly a bigger one than the benefits of freedom.
I wouldn't want a neighbor who revs up his big block chevy @ 2:00 am, but he would have the freedom to do that. wouldn't want a man to wear a shirt depicting a large penis in front of my 5 year old daughter, but wouldn't that be censorship? exactly where would it stop being an infringement on his civil rights and start being one on mine?
 

julianne

New Member
I would say kids in highschool should follow the rules of the school. But I would say kids in college should be given about 98% free speech. No hate or riot-inciting. This kid should have gotten a lecture about ruining it for other tokers by his poor judgment but, NO, they had to blow it all out of proportion.
 

Ronnie

New Member
I agree, but who draws the line to what that 98% free speech is? most anything can be challenged as censorship...
 

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
i haven't been speaking as if these rules are bad. i'm just sayin' that words have meanings and i've seen the meanings of words distorted so much that i guess its becoming a thing.

free (frē)
adj., fre·er, fre·est.
Not imprisoned or enslaved; being at liberty.
Not controlled by obligation or the will of another: felt free to go.
Having political independence: “America . . . is the freest and wealthiest nation in the world” (Rudolph W. Giuliani).
Governed by consent and possessing or granting civil liberties: a free citizenry.
Not subject to arbitrary interference by a government: a free press.
Not affected or restricted by a given condition or circumstance: a healthy animal, free of disease; free from need.
Not subject to a given condition; exempt: income that is free of all taxes.
Not subject to external restraint: “Comment is free but facts are sacred” (Charles Prestwich Scott).
Not literal or exact: a free translation.
Costing nothing; gratuitous: a free meal.
Publicly supported: free education.
Not occupied or used: a free locker.
Not taken up by scheduled activities: free time between classes.
Unobstructed; clear: a free lane.
Unguarded in expression or manner; open; frank.
Taking undue liberties; forward or overfamiliar.
Liberal or lavish: tourists who are free with their money.
Given, made, or done of one's own accord; voluntary or spontaneous: a free act of the will; free choices.
Chemistry & Physics.
Unconstrained; unconfined: free expansion.
Not fixed in position; capable of relatively unrestricted motion: a free electron.
Not chemically bound in a molecule: free oxygen.
Involving no collisions or interactions: a free path.
Empty: a free space.
Unoccupied: a free energy level.
Nautical. Favorable: a free wind.
Not bound, fastened, or attached: the free end of a chain.
Linguistics.
Being a form, especially a morpheme, that can stand as an independent word, such as boat or bring.
Being a vowel in an open syllable, as the o in go.
adv.
In a free manner; without restraint.
Without charge.
tr.v., freed, free·ing, frees.
To set at liberty; make free: freed the slaves; free the imagination.
To relieve of a burden, obligation, or restraint: a people who were at last freed from fear.
To remove obstructions or entanglements from; clear: free a path through the jungle.
idiom:

for free Informal.
Without charge.

[Middle English fre, from Old English frēo. V., from Middle English freen, from Old English frēon, to love, set free.]

so i would say that we do not have free speech in the united states. i would go so far as to say we don't have freedom in the united states except for whatever freedom we have in our minds.

So you take away the rules and here is what you do....


What An Anarchist Society Would Look Like

There have been many different visions of what an anarchist society would look like. Any vision that abolishes the things anarchists are opposed to and is consistent with the earlier stated principles of anarchism is compatible with anarchy. There are, however, many institutions that have been proposed by anarchists to run a non-hierarchical society. Most of these are not based on idle speculation but by looking at how actually existing anarchist societies have worked. Some of them are:

Popular Assemblies Also called general assemblies or mass assemblies. In any organization people can come together to meet and discuss whatever common problems or activities they face. At these assemblies everyone should have an equal opportunity to participate in both the discussion/debate and the final decisions. These can be formed in workplaces where they would take over the running of all workplaces. Worker assemblies would then meet regularly to plan production, divvy up the tasks that need to be accomplished, etc. They can be formed in each neighborhood in order to deal with whatever particular issues confront that neighborhood and organize to deal with them. These are based on free association so whenever a group of people wants to get together to accomplish some goal they can simply form a general assembly to organize it. Free association also means that no one would have to participate in an assembly if they did not want to. Such assemblies can be formed to organize around anything - not only around workplace and neighborhood issues but potentially also universities, clubs, space exploration, etc. Worker assemblies, neighborhood assemblies, university assemblies, community assemblies and the like can all be formed to run society without hierarchy, based on self-management.

Councils The different assemblies can coordinate their activities through the use of a council system. This is done by each assembly assigning a contact person(s) (sometimes called a spoke or delegate) to meet with other contact people from other assemblies which they want to coordinate things with. The meeting of contact people is called a council or spokescouncil. Position of contact person should rotate frequently. Each contact person is mandated, meaning that they are instructed by the assembly that they come from on how to deal with any issue. The contact people would be given binding instructions, committing them to a framework of policies, developed by their assembly, within which they would have to act. If at any time they violate their mandate their assembly would instantly recall them and their decisions revoked. Decision making power stays in the assemblies; contact people simply convey and implement those positions. Contact people do not have any authority or special privileges. Councils are organized from the bottom up, with control staying in the assemblies. They are not hierarchical organizations but simply coordinate the activities of the assemblies without authority. Instead of hierarchy there are decentralized confederations and networks. This differs from representative institutions in that decision making power stays in the assemblies whereas representatives can make whatever decisions they want and have authority over others. These councils can be formed to coordinate the activities of assemblies on whatever level needed. Worker councils can coordinate the activities of the worker assemblies; neighborhood councils can coordinate the activities of different neighborhood assemblies, etc. They can also do this on a regional scale - forming regional worker councils, etc - and those regional confederations can use the same method to coordinate with each other. In all cases decision making power stays with the assemblies upon which the councils are based - the assemblies would be the core of any organization.

Decision Making Processes
Any decision making process in which everyone has control over their own life and all members have an equal say, rather than dividing people into order givers and order takers, is theoretically compatible with anarchism. Although there are many different ways in which this can be done, there are two main methods of non-hierarchical decision making which are advocated by most anarchists:

Consensus In consensus everyone in the group must agree to a decision before it can be put into action. All contributions are valued and participation is encouraged. Any member can block consensus, stopping a decision they strongly object to. Members may also "stand aside," allowing a decision they do not like to be made without blocking or supporting it.

Direct Democracy Decisions would be made by directly voting on the options - the option with a majority of votes is implemented. Anarchists who advocate direct democracy do not believe in a mechanical process whereby the majority just votes away the minority and ignores them. It is intended to be a dynamic discussion process where different people listen to each other and exchange ideas. Direct Democracy is combined with free association as well - meaning that anyone who is out-voted does not absolutely have to abide by the decision. They can simply leave the group.

These decision making processes would be used in the popular assemblies, councils, etc. There are many variations on them and it is also possible to synthesize consensus and direct democracy. Some groups could use direct democracy but require the majority be of a certain size (such as 2/3rds or 3/4ths) instead of a simple majority. Another variation is to attempt to achieve the largest majority possible.

Economics
There have been many different economic systems envisioned by anarchists. These different visions are not necessarily incompatable with each other and could probably co-exist within the same society. The main ones are:

Mutualism In mutualism people would be either self-employed or part of a worker-controlled cooperative (individual cooperatives would be run by worker assemblies as described above). They would produce goods and trade them on a market. Although mutualism uses markets to coordinate production it is not capitalist because wage labor would be abolished. No one would sell their labor to others but would instead work in cooperatives or for themselves.

Collectivism In Collectivism markets would be abolished. Instead of using markets to coordinate production they would set up workers councils, as described above, to coordinate production. Each workplace would be run by it's own worker assembly and each assembly would federate with other workplace assemblies in the area, forming a local workers council. The workers councils would federate with each other (forming more councils) as needed on many levels. Money would be kept and people paid on the basis of how much they work. Most collectivists believe that collectivism would eventually evolve into a gift economy.

Participatory Economics Also called Parecon. This is similar to collectivism; the biggest difference is that there are consumer assemblies in addition to worker assemblies. The underlying values parecon seeks to implement are equity, solidarity, diversity, and participatory self management. The main institutions to attain these ends are council self management, balanced job complexes, remuneration according to effort and sacrifice, and participatory planning. Consumers and workers directly democratically and cooperatively negotiate their production and consumption on an individual basis and via worker and consumer councils and federations of councils. Balanced job complexes share quality of work and empowering work equitably throughout the workplace and the entire economy. Workers are remunerated for effort and sacrifice, so in tandem with balanced job complexes consumption bundles are roughly equal, with minor discrepancies due to people's chosen working hours and intensity.

Gift Economy Also called anarcho-communism or libertarian communism. A gift economy would abolish money and trading all together. Production and distribution would be done purely on the basis of need through a confederation of free communes. The economy would be organized along the lines of "from each according to ability, to each according to need." The "communism" in anarcho-communism has nothing to do with the countries which some erroneously call "Communist" (USSR, China, etc.). None of those countries actually claimed to be communist; they claimed to be in a transition to communism. Anarcho-communists opposed these dictatorships from the very beginning and have participated in many rebellions against them. Anarcho-communists would do away with money, central planning and the state - all of which were present in the USSR, China, etc.

Primitivism Primitivists would abolish industry, civilization and most forms of technology. Instead anarcho-primitivists advocate a low-tech green society. This would be either an agrarian or hunter-gatherer society. Primitivists are split on the question of agriculture: some want to do away with it all together and others would keep some forms of primitive agriculture.

An Anti-Authoritarian Webpage

thats what i'd like to leave my grandchildren.
 

slntchttrbx

New Member

RIPinGlass247

New Member
If anyone thinks they have rights in America they should rethink it, the cops can come into home anytime they want if they really wanted to, free speech doesnt exist if it is against the religious right or if it is not politically correct. you either play societies' game or you end up on the streets or in prison. But maybe one day people will realize we don't have to live this way. I dunno the kid was pretty stupid lol shoulda thought this one over a little bit more, I kinda wanna wear a Bong Hits 4 Jesus shirt now.
 
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Ugodmade

New Member
I think limits should be put on only where you have a larger body of people with different beliefs but when u get out of the gathering you should be able to do and say anything you wish as long as it does not affect the people around you.. But also if more people don't back people up like the one in this story mj has no fighting chance ! people have to speak up and group together or the world may never see the full potential mj has to offer the world
 

Herb Fellow

New Member
I just want to be free on my little piece of earth and to be left the f#@k alone!
 

sicntired

Member
Recent surveys have shown that the campaign against marijuana has been so successful that kids in the lower grades are terrified of pot but have no fear at all of drugs like cocaine and crystal meth.They were even less afraid of heroin than they were of pot.If that's a success ,there's something very wrong in paradise.:11:
 

Herb Fellow

New Member
Yeap, you would think it was Nazi Germany with the government schools training the children to turn their parents in.
 

sicntired

Member
To err is human.To keep on making the same mistakes over and over is callous and stupid.For a definition of callous and stupid,look up Drug Czar.:31:
 
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