I've thus far refrained from commenting on the quartet of 5-4 Supreme Court decisions released yesterday. This is primarily due to my desire to save my energy for when the Seattle and Louisville desegregation cases come down, because I imagine it will be soon and I imagine they will piss me off to high heaven. The Hein case appears to be completely incoherent--two people in my constitutional law seminar wrote their papers on this case, and both appeared completely flummoxed as to how the court could rule the way it did (at least without overturning Flast).
But the big daddy, of course, was Morse v. Fredrick--the infamous "BONG HiTS FOR JESUS" case. The annals of American law are littered with the graves of constitutional clauses unceremoniously sacrificed upon the altar of the drug war, and this case appears to fall well within that tradition. As Jonathan Simon puts it, "Morse is ultimately as much a case about the level of official hysteria about drugs (and especially marijuana) in America, as it is about any particular clause of the constitution."
"BONG HiTS FOR JESUS" is a gibberish phrase. It takes a special kind of contortion to argue that this "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug.'" I mean, I guess it could be, but I'm sticking with my original instinct that it is gibberish. Outside of statements that directly threaten the safety or equal standing of fellow students, I think high schoolers should have wide latitude to express opinions--sensible or no.
Scott Lemieux is relieved that what appears to be the controlling opinion limits the case as "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." I'm less sanguine--I think this is cover so that Alito can strike down school action against rabidly anti-gay speech in schools (you know, like he already did). The irony is that the argument really doesn't work that well to distinguish the two cases, but that's not going to matter because I don't think it's a principled distinction. This is something that does get me riled. Marijuana usage, medically speaking, just isn't that damaging to the health or safety of high school students. It's not benign, of course, but the hysteria we've surrounded it with through the drug war, in addition to having more than a whiff of racism to it, has blown it up beyond the realm of scientific or moral coherency. The hypothetical threat posed by "BONG HiTS FOR JESUS"--an attenuated sequence by which students who weren't otherwise inclined to take drugs would see the sign as advocacy and be persuaded (by the cutting argumentation, no doubt) to become stoners is far more remote than the risk to gay students presented by anti-homosexual slurs and posters in schools with a history of anti-gay rhetoric (and violence). That I am quite confident this hierarchy will be inverted is due to an irrational and toxic mix of war on drugs hysterics and homophobic prejudice that will henceforth be the law of first amendment land.
Oh, and before I forget, after reading this from Chief Justice Roberts:
Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an important indeed, perhaps compelling interest....
I am going to flip out if he then says that diversity does not meet that threshold.