In a 5-4 decision handed down yesterday, the Supreme Court reversed a Ninth Circuit decision and held that the school board did not offend the First Amendment when it disciplined a student who held up a sign that read "BONG HiTS 4 Jesus" at a "school outing" when the class was outside watching the Olympic torch go by.
Now as a practical matter, it is a pretty stupid thing to do and I don't think disciplining the student for being a jackass is a bad idea. But if you read why the board disciplined him, and more importantly, why the SCOTUS upholds the school board's decision is more than a little disturbing.
While the court admitted the message was "cryptic," it went on to conclude that the sign "advocated the use of illegal drugs," and that thus the school could thus restrict the student's speech consistent with the First Amendment.
But pay close attention to how the Court concludes that the sign promotes and advocates illegal drug use. Here is the key paragraph.
At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.So the phrase could be interpreted as an "imperative" when the court inserts the correct verb and appropriate conjugation in front of the what the sign actually says "[Take] bong hits..." or it could be "celebrating" drug use when the Court inserts pretty much ALL of the necessary language for that interpretation "bong hits [are a good thing]."
I'm sorry, but that's fucking crazy. Here, I can play that too. How about "bong hits [are totally bogus]." See? It's actually promoting a drug-free America, Judge Roberts! Or maybe the sign read "[All students have to pray ] 4 Jesus!" Now we have an establishment clause violation! This is fun. Feel free to come up with your own meaning!
If there's anything that can be called "judicial activism," it includes adding operative language to the speech in question so that it can be placed outside of the full scope of protection of the First Amendment.
Previous post on the oral argument, Bong Stinks for Jesus: collateral tokage.
Better written article at the Washingtonpost.com, from whence I also stole the picture.
Full SCOTUS opinion