It's A Joke, All Right

As they wind down their hellacious term, The Supremes ruled today against former student Joseph Frederick and in favor of Juneau, Alaska high school principal Deborah Morse (and her legal mouthpiece, the infamous Ken Starr) in the “Bong Hits 4 Jesus” case, which, short of anything involving Paris Hilton, redefined the term “much ado about nothing” as far as I’m concerned (I weighed in on this some time ago here, and here is another infamous moment).

To recap, Frederick, then 18, unfurled the banner bearing his stupid wording outside of school property in 2002. Frederick was suspended and then sued the school, and a federal appeals court in San Francisco sided with Frederick. Morse and the school countersued, getting Starr into the picture, arguing that the school " ’must be able to fashion its educational mission’ without undue hindsight from the courts.”

The verdict of The Supremes on this wasn’t five to four for a change. Justice Stephen Breyer joined the majority, as noted in the CNN story, though he did not sign onto the broader free speech limits on students noted in the majority opinion (gee, that was nice of him – trying to have it both ways, I guess).

And I would say that Hangin’ Judge J.R. Roberts missed the point entirely, as per usual, with this quote:

“It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge”…

A typically reactionary, fantastic assumption on Roberts’ part, of course – I would say that anybody who decides to try drugs based on the wording of a banner has bigger issues to deal with.

And thank God for John Paul Stevens, who said…

“This case began with a silly nonsensical banner, (and) ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message."

All of this brings to mind last week's column in The New Yorker by law correspondent Jeffrey Toobin about the term of the most conservative court I hope I ever see in this country (sorry about the flaky link). As Toobin notes, here is perhaps its most notorious lowlight…

“…the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion – a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning for Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To The Court, it was the partial-birth abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion in never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.”

And for anyone who thinks there isn’t much friction going on with this bunch, I give you this from Toobin’s column…

“It has been the custom at the Court for dissenters to explain their views individually or in small groups; but this group, led by Stevens, the senior member of the Court, has taken to uniting around a single opinion, as if to emphasize a collective view that the majority is taking the law in dangerous directions. In the case about the missed appeals deadline, the dissenting opinion, by the usually mild-mannered (David) Souter (who was joined by Stevens, (Ruth Bader) Ginsburg and Breyer), reflected true anguish: ‘It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”

And Toobin ends with this cautionary note…

“At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts (Clarence) Thomas and (Strip Search Sammy) Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.”

Getting back to Frederick about the “Bong Hits 4 Jesus” case (who, as the story notes, is now teaching English in China), he had this to say…

"I find it absurdly funny," he said. "I was not promoting drugs. ... I assumed most people would take it as a joke."

Yes, but here’s the problem, you numbskull; because you decided to contest your suspension over this stupid prank instead of just serving it and keeping your mouth shut, you’ve ended up eroding student free speech rights. You gave the most backward and corporate-friendly government this country has ever seen (and I’m talking about all three branches, though there has been some improvement when it comes to Congress) an excuse to limit the rights of expression for your one-time peers.

Though the forces responsible for this were not under your control, you still share a measure of responsibility. I hope you’re happy with yourself.

(Here's more from Adam B at The Daily Kos.)

Update 6/28/07: Here's more from Adam B.