From the WSJ Opinion Archives
WONDER LAND
Bong Hits 4 Jesus--Explained
Will the justices overturn Tinker? Nah, they'll just tinker.
In a better world, the phrase "Bong Hits 4 Jesus" would take its place in the library of eternal mysteries alongside "Bye-bye Miss American Pie," "I Am the Walrus" and "It's Alright, Ma, I'm Only Bleeding." Instead, it fell Monday to the Nine Interpreters of the U.S. Supreme Court to deconstruct "Bong Hits 4 Jesus" and decide for the rest of us whether it falls inside the protections of the American Constitution.
Perhaps an explanation is in order.
Morse v. Fredericks, a k a Bong Hits 4 Jesus, is a First Amendment free-speech case. The phrase "Bong Hits 4 Jesus" came to life as a 15-foot banner, which Joseph Fredericks, a senior at the high school in Juneau, Alaska, unfurled directly across from the school entrance as a parade passed by bearing the Olympic torch for the 2002 Olympics. Whereupon, the school's principal, Deborah Morse, ordered Mr. Fredericks to take down his banner and later suspended him.
Some definitions: As defined by the online encyclopedia Wikipedia, "A bong, also commonly known as a water pipe, is a smoking device, generally used to smoke cannabis [a k a marijuana], but also other substances." The entry also explains a "hit." "The user places his/her lips on the mouth piece, forming a seal, and inhales. An inhalation is known as a 'hit.' " (For the still curious, the Wikipedia entry is long and lovingly prepared, with beautiful color photos of bongs and explanations of "bong water" and "health benefits.")
Principal Morse, who had had other run-ins with Mr. Fredericks, believed his sign was undermining the school system's anti-drug policy, and so took action. Within months, Mr. Fredericks sued, assisted by the Alaska Civil Liberties Union, claiming violation of his free-speech rights.
Two later cases, Fraser and Kuhlmeier, refined Tinker's scope, which we'll see shortly is the background to one of the most hilarious--and revealing--exchanges at oral argument ever in a school free-speech case.
In the years since, school officials and lower courts have struggled with Tinker. The Massachusetts Supreme Court said a T-shirt, "Coed Naked Band: Do It to the Rhythm," was protected speech. But schools in several states have banned a T-shirt with "Abortion is Homicide. You will not mock my God." (Religious groups filed amicus briefs for the Juneau "bong" banner because they want similar protections to wear anti-abortion shirts and the like.) A federal appeals court in California said schools could ban a T-shirt calling homosexuality shameful because it was "injurious to gay and lesbian students and interfered with their right to learn." But a federal court in Ohio conferred constitutional protection on a shirt with: "Homosexuality is a sin! Islam is a lie! Abortion is murder!" All these cases involve public schools.
There are legal blogs on the Web which try to predict Supreme Court rulings. Many say the result in the "Bong" case is a close call.
Here is Chief Justice Roberts Monday on applying the First Amendment in Juneau: "You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under Fraser I can do something if it interferes with the basic mission, and under Kuhlmeier I've got this other thing. So she should have known . . ."
The lawyer for "Bong" replied that the principal took a course in school law and so had studied Kuhlmeier, Fraser and Tinker. Chief Justice Roberts replied: "So it should be perfectly clear to her exactly what she could and couldn't do." The lawyer: "Yes." Justice Scalia: "As it is to us, right?" (Laughter in the court.)
The Nine Interpreters know that Tinker has produced a morass since 1969. Chief Justice Roberts said, "I thought we wanted our schools to teach something." A school isn't an "open forum," remarked Justice Scalia, "it's there for the teachers to instruct." Justice Ginsburg wondered about "reasonable rules of decorum." Justice Breyer ridiculed case-law standards in these fights: "I don't think [the principal] has to be able to read content discrimination, viewpoint discrimination, time-place. He doesn't know the law, the principal. His job is to run the school."
Well, it used to be.
We live in hyperpoliticized times. With the Web drawing ever-greater numbers into the daily game, no political offense is too slight to raise waves of high dudgeon. And they roll into the schools. Justice Breyer worries about "people testing limits all over the place in the high schools." I worry about dumbing down the schools to the current level of politics in the adult world.
The pious extension of First Amendment speech rights amid Vietnam from adults to students prior to college was a mistake. The Bong case may be another nail in the coffin of public schools. Parents, including liberals who can afford it, will quicken the trend to sending their children to private schools whose principals can exercise real discretion and in loco parentis.
One argument for the say-it-loud status quo is that kids should be free in school to learn how "to deal" with different viewpoints. I'd bet all nine justices went to high schools with principals who put learning first and Tinkered "speech" in its place. It doesn't seem to have stopped them from growing up to drive people nuts with their opinions.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Thursdays in the Journal and on OpinionJournal.com.
