BONG HiTS at the Supreme Court || October

As a newspaper on a law school campus, we cannot allow our first issue to go by without addressing the court's recent decision in Morse v. Frederick.

According to the Supreme Court in Morse v. Fredrick, a decision handed down earlier this year, "BONG HiTS 4 JESUS" does not qualify for First Amendment protection.

This was the message on a banner held by students at a high school in Juneau, Alaska while the Olympic torch passed by. One student, who had been holding the banner, 18 year old Joseph Frederick, refused to relinquish it when confronted by Principal Deborah Morse. In response, Frederick was suspended.

Frederick brought suit and his suspension was upheld by a lower court. However, the Court of Appeals reversed. The Ninth Circuit held that the principal's actions violated the First Amendment, and that the student could sue the principal for damages because a reasonable person in Morse's position "would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity."

Frederick's argument was based upon the Supreme Court's decision in Tinker v. Des Moines Independent Community School District. In that case, the court held that students had a First Amendment right to wear black armbands to protest the Vietnam War. However, more recent rulings had chipped away at that foundation. For example, school administrators were found to have a right to discipline a student for lewd speech at a Middle School program. Therefore, the Court had to determine whether "BONG HiTS 4 JESUS" was more akin to a political message or a speech containing graphic sexual metaphors.

To justices Samuel Alito and Anthony Kennedy (who concurred separately), the banner was simply a matter of poor taste and inarticulate wording. If Frederick had held up a banner saying, "Jesus believes you should vote to legalize marijuana," that sign would likely be protected because it commented upon a political or social issue.

Justice Thomas, in another separate concurrence, believed that Tinker v. Des Moines was bad law and that students do not have First Amendment rights in school. He took the opportunity to express his viewpoint that we should go back about a hundred years (at least that's where he draws his legal precedent from) and to express how much he loves harsh discipline.

One member of the National Organization for the Reformation of Marijuana Laws had the following to say, "I could understand restricting speech that advocated hate or violence. Anyway, they should have put up "WWJD@4:20" and maybe people wouldn't have caught on. Suspension isn't effective, they should bring back paddling. Today children are over reprimanded and under punished."

It was apparent to me that the NORML member was high during the interview. She agreed with Justice Thomas. What does this say about his logic?

Justice Stevens never disappoints in dissent. As my favorite Ford appointee, he also took his argument back to the turn of the century. However, Stevens was more of a rebel than Thomas and talks about his prohibition days as one opposed to a law that punished what he felt were generally law abiding citizens. It seems that he empathizes with those who wish to legalize marijuana through this analogy, which included his creating a hypothetical "WINE SiPS 4 JESUS" banner.

Justice Breyer's concurrence was based upon qualified immunity for the principal and her actions. This was likely the most reasonable outcome in terms of trying to reach a compromise decision early in the case. However, his decision came two appeals too late to quell what had already swelled to an ideological debate.

What is unstated but I believe to be implied is an understanding that in a battle for ideas, attention is power. What was my grandparent's solution to bad behavior-ignore it and not feed any attention into it. If the majority doesn't agree with the message, then certainly this attempt to censor it and the accompanying media coverage which has now plastered the slogan all around the country serves to evidence how counter-productive such efforts can be.

Another point that I feel was left out of this decision is the fact that humorous messages can have important political and social undertones. The Daily Show and Colbert Report are only modern examples of a history replete with examples of the use of political jokes and comics to convey relevant ideas to the public. How does the public feel about the topic? In an online MSNBC poll with 93,403 responses, 75 percent sided with Frederick and believed he had the right to hoist his banner.

Jesus was busy helping flood victims in Ohio and was unavailable for comment.