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Feature: Supreme Court Uses "Bong Hits 4 Jesus" Case to Limit Students' Speech Rights

The US Supreme Court moved Monday to tighten limits on free speech for high school students, ruling that an Alaska high school could constitutionally punish a student who held up a 14-foot-long banner reading "Bong Hits 4 Jesus" during a school-related event. In a 5-4 decision, the high court held that schools may prohibit students from expressing views that could be interpreted as advocating drug use.

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March demonstration outside Supreme Court during Morris v. Frederick hearing
While the courts have held that students in school do not have the same First Amendment rights as other citizens, in a 1969 decision regarding the expression of anti-Vietnam War viewpoints by students, the court famously held that they did not shed the constitutional rights at the schoolhouse door. Since then, the court has trimmed back students' free speech rights in a couple of cases, and on Monday, it did so again.

The ruling came in Morse v. Frederick, a case that began in 2002 when Joseph Frederick led a group of students holding the banner aloft as an Olympic parade passed by. Students had been excused from school to attend the event. Principal Deborah Morse interpreted the nonsensical banner as a "pro-drug message," tore down the banner, and punished Frederick with a 10-day-suspension from school. Frederick filed suit in federal court charging that Morse and the school district had violated his First Amendment free speech rights, and after a series of rulings taking the case back and forth, it eventually ended up at the Supreme Court.

"The message on Frederick's banner is cryptic," Chief Justice John Roberts said in the majority opinion. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

A number of drug reform and civil liberties organizations, including the Drug Policy Alliance and Students for Sensible Drug Policy, as well as a broad spectrum of groups including the conservative American Center for Law and Justice, Christian Legal Society and Rutherford Institute to the Student Press Law Center, Lambda Legal Defense and Education Fund, and the National Coalition Against Censorship filed or joined briefs supporting Frederick. The ACLU argued Frederick's case before the court.

While the narrowly drawn decision limits student speech regarding illegal activities, it does not give school administrators the right to suppress speech advocating political positions, such as the legalization of drugs. As Chief Justice John Roberts noted in the majority opinion, "This is plainly not a case about political debate over the criminalization of drug use or possession."

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In a concurring opinion, Justices Alito and Kennedy joined with the majority, with the understanding that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

"The decision indeed cuts back on speech rights for high school students," said UCLA law professor Eugene Volokh, author of the Volokh Conspiracy law blog. "It claims on the one hand that 'Bong Hits 4 Jesus' is an endorsement of illegal drug use, but at the same time, it denies that those words carry any kind of political or social message, and of course they do. Either it was nonsense, in which case it wasn't advocating anything, or, if it was advocacy for illegal drug use, it carried a social and political message."

The ruling could lead to move attempts to restrict student speech, Volokh said. "As a result of this confusion, lower courts may find more student speech to be unprotected because of unsound judgments that it is not really political advocacy."

There is also the sticky question of what happens when students combine advocacy of illegal drug use and advocacy of a political position, Volokh said. "What if someone says 'Repeal the marijuana laws because it's fun and safe'? That's a tougher question."

Reaction to the verdict from Frederick supporters was a mixture of disappointment, concern, and relief. "We take mild comfort that the decision clearly protects speech challenging the war on drugs. Never before has the Supreme Court stated so clearly that speech attacking the wisdom of the war on drugs is protected wherever it may occur," said Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance.

"But who is going to decide what is appropriate speech?" Abrahamson continued. "Students are on the front lines of the war on drugs, and we are deeply concerned that free speech will now be administered by those who may wish to suppress open discussion on a range of topics such as the effectiveness of the DARE program, school drug testing policies, or random locker searches. Our constitutionally protected rights to free speech shouldn't have an arbitrary drug war exception."

"Thankfully the Supreme Court agreed with the arguments SSDP set forth in our brief, limiting punishable speech to that which expressly promotes drug use," said SSDP executive director Kris Krane. "But we are concerned that the Supreme Court's decision could cause confusion among school administrators, who may overreach and punish students for speech about drug policy despite the court's ruling today."

"We are disappointed by the Supreme Court's ruling, which allows the censorship of student speech without any evidence that school activities were disrupted," said Douglas K. Mertz, an ACLU cooperating attorney who argued the case before the Supreme Court.

"The Court's ruling imposes new restrictions on student speech rights and creates a drug exception to the First Amendment," said Steven R. Shapiro, ACLU National Legal Director. "The decision purports to be narrow, and the Court rejected the most sweeping arguments for school censorship. But because the decision is based on the Court's view about the value of speech concerning drugs, it is difficult to know what its impact will be in other cases involving unpopular speech.

"The Court cannot have it both ways," Shapiro added. "Either this speech had nothing to do with drugs, which is what Joe Frederick claimed all along, or it was suppressed because school officials disagreed with the viewpoint it expressed on an issue that is very much the subject of debate in Alaska and around the country."

If the ruling is a disappointment and a concern for free speech advocates, it is also notable for one of the most striking critiques of marijuana prohibition ever heard from the high court. In his dissent, Justice John Paul Stevens, joined by Justices David Souder and Ruth Bader Ginsburg, compared the current prohibition of marijuana to alcohol Prohibition. "But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies," wrote Stevens, "today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting -- however inarticulately -- that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."

"Even in high school," Stevens continued, "a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views… In the national debate about a serious issue, it is the expression of the minority's viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular."

That's the minority viewpoint, of course. But when talk like that starts coming from a Supreme Court justice, it makes one wonder just how hollow the drug prohibition edifice is. Steven's dissent suggests there is serious rot in the drug war consensus.

Latin America: House Votes to Shift Andean Initiative Anti-Drug Funding to Development

The US House of Representatives voted last Friday to reduce funding for Colombian security forces under the Andean Initiative and increase development assistance. The measure passed by the House also cuts funding and creates tighter conditions for aerial spraying to curb coca cultivation. The measure, passed as part of the 2008 aid foreign aid bill, HR 2764, now heads for the Senate, where Democratic critics of the Bush administration's Colombia policy lay in wait.

Since 2000, the Congress has appropriated more than $4.3 billion—more than $3.3 billion for police and military—for the Bush administration's Andean Initiative, the US effort to wipe out the region's coca producing capability and related cocaine economy. But despite all the billions spent and the hundreds of thousands of acres of Colombian farmland sprayed, coca production remains at roughly the level it was in 2000 and cocaine prices in the US continue to plummet, a key indicator of ample supplies.

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Six Federations (Bolivian) coca growers' union member (and former leader) Vitalia Merida in her backyard. She says there is peace now in the Chapare, but no prosperity. Her kids don't want to go to school because they have no money; instead, they want to leave and work in the city. (Photo by Chronicle editor Phil Smith, February 2007)
Military assistance has accounted for more than 75% of all US aid under the initiative since its inception. This bill would lower that share to 55%, with 45% going for social and humanitarian aid, including for the first time funds for the country's Afro-Colombian minority.

According to an analysis by the Center for International Policy, the Bush administration sought $450 million for the Colombian military for next year, but the House slashed that by $160 million. And while the Bush administration sought $139.5 million for development assistance, the House funded it at a level of $241 million, making economic and social assistance account for 45% of funds under the aid bill, compared to the 24% it would have been under the Bush proposal.

In its narrative report accompanying the bill, the House Appropriations Committee spelled out its reasoning for the change in emphasis. "The Committee is concerned that the perennial goal of reducing Colombia’s cultivation, processing and distribution to restrict supplies enough to drive up prices and diminish purity has not worked and the drug economy continues to grow—further weakening the fabric of Colombian society," the report noted. "The Committee notes that this is now year eight of an ever more evolving multi-year plan. This program is not working and the Administration’s fiscal year 2008 request for Colombia is virtually identical to previous requests, which contradicts assurances that the Administration has provided to Congress over the years that the social component to Colombian aid would be significantly increased and that gradual 'Colombianization' of the program would take effect."

“This bill recognizes that it is time for change in our Colombia policy,” said Rep. Peter Welch (D-VT) in floor debate on Wednesday.

Such a change couldn’t come soon enough for advocates of a more enlightened policy toward Colombia and the drug war. “While there are no easy solutions, the bill passed by the House moves in the right direction,” said Joy Olson, executive director of the Washington Office on Latin America.

"This is a very good bill," said the Center for International Policy. "It shows that a great deal of thought went into trying to get this policy right."

The Colombia foreign aid appropriation bill once again provides evidence that a congressional election can make all the difference in the world.

Is it Ok to Out Prohibitionist Politicians for Past Pot Use? Yes.

When Minnesota Senator Norm Coleman regurgitated ONDCP anti-pot propaganda, he got more than he bargained for. It all began with this statement from the senator:
"I oppose the legalization of marijuana because, as noted by the Office of National Drug Control Policy, marijuana can have serious adverse health affects on individuals. The health problems that may occur from this highly addictive drug include short-term memory loss, anxiety, respiratory illness and a risk of lung cancer that far exceeds that of tobacco products. It would also make our transportation, schools and workplaces, just as examples, more dangerous." [CelebStoner.com]
Unfortunately for Coleman, NORML board member Norm Kent was hip to his hypocrisy. Having partied and protested alongside Coleman in college, Kent crafted an open letter to the Senator exposing his marijuana use and fundamentally undermining Coleman's reckless characterization of the drug's risks:
Dear Mr. Coleman,

My friend Norman.

Years ago, in a lifetime far away, you did not oppose the legalization of marijuana. Years ago, in our dorm rooms at Hofstra University, you, me, Billy, your future brother-in-law, Ivan, Jonathan, Peter, Janet, Nancy and a wealth of other students smoked dope.

Sure, we had to tape the doors shut, burn incense and open the windows, but we got high, and yet we grew up okay, without the help of the Office of National Drug Control Policy's advice...

Truly, nothing could better refute Norm Coleman's attacks against marijuana than the life of Norm Coleman. He smoked marijuana in college – like so, so, so many others – and now he is a U.S. Senator. He does not have lung cancer or schizophrenia.

As a general rule, I don’t think it's our business who smoked pot in college. But so long as a great and terrible war is waged against marijuana users, we cannot always afford to take the moral high ground. Kent's letter reveals Coleman as a shameless liar in far fewer words than it would take to explain that marijuana doesn’t cause cancer or idiocy.

Most importantly, Norm Coleman's public humiliation sends a message to other politicians that flagrant lies and rank hypocrisy will not be tolerated in the marijuana debate. Until our leaders finally get the message that Americans don’t want this war, cheap political posturing will continue.

If a little narcing of our own can help silence other would-be drug war demogogues, I say let 'em have it.

Update: In hindsight, the above doesn't exhibit much respect for individual privacy, which is an important value that must always be considered even when dealing with dishonest folks. As Kent's letter notes, Coleman mentioned getting high in the school newspaper and used marijuana defiantly on the roof of a school building during a protest, so he'd already sacrificed any expectation of privacy.

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Incarceration: Jail and Prison Population at All-Time High (Again) -- Last Year Saw Biggest Increase Since 2000

The number of people behind bars in the United States reached a new all-time high last year, with some 2.24 million people in jail or prison at mid-year. The imprisoned population jumped by 62,000 people or 2.8%, the largest increase since 2000.

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Signal Hill jail, southern Los Angeles County, California
The figures come from the Justice Department's Bureau of Justice Statistics (BJS) annual report on mid-year imprisonment numbers. One of every 133 Americans was behind bars on June 30, 2006, BJS reported.

America's title as the world's number one jailer -- with 5% of the global population, the US has 25% of the prisoners -- once again remains unchallenged, leaving contenders like Russia and China in the dust. Roughly 500,000 of the more than 2.2 million people imprisoned in the US are doing time for drug offenses, a number that goes even higher when the number of people imprisoned as parole or probation violators for using drugs is factored in.

The new numbers elicited a blast at the special interests who benefit from mass incarceration by Ethan Nadelmann, head of the Drug Policy Alliance. "Two powerful forces are at play today," said Nadelmann. "On the one hand, public opinion strongly supports alternatives to incarceration for nonviolent, and especially low-level, drug law violators – and state legislatures around the country are beginning to follow suit. On the other hand, the prison industrial complex has become a powerful force in American society, able to make the most of the political inertia that sustains knee-jerk lock-'em-up policies."

If the BJS figures are any indicator, lock-'em-up policies are still in vogue. Forty-two states and the federal system reported an increase in prison populations last year, with only eight reporting declines. More than 1.5 million people are now in state or federal prison, with an additional 700,000 in jail.

Most of the growth in the imprisoned population came in the state and federal prison systems, with the jail population increasing at a rate of 2.5%, the lowest increase since 2001. The federal prison population grew by 3.6% to 191,000 June 30, a figure that had increased to 199,000 this week. Nearly 55% of all federal prisoners are drug offenders.

In state prisons, the increase was largely due to a rise in prison admissions, up 17% since 2000. About one-quarter of state prisoners are serving time for drug offenses.

Racial minorities continue to take the brunt of both the drug war and the resort to mass incarceration in general. Black men comprised 37% of the imprisoned population, being locked up at a rate (4.8%) more than twice that of Hispanic males (1.9%) and nearly seven times that of white males (0.7%). Among black men between ages 25 and 34, a whopping 11% were behind bars.

ONDCP Still Fuming About New Mexico's Medical Marijuana Law

The following post from ONDCP's blog illustrates how trivial their objections really are:
Bad things happen when drug-legalization groups send mixed messages about marijuana to the American public. Check out this story out of New Mexico:
"It was all a misunderstanding. Really.

"Dude, I totally thought weed was legalized in New Mexico," police say a man with 67 marijuana plants in the trunk of his car told them.

"Well, it's not," the police officer replied.

A man was busted at the Border Patrol checkpoint on U.S. Highway 70 June 12, allegedly while transporting a large number of marijuana plants in his car.

He told police he thought weed had been legalized in this state." [Alamogordo Daily News]
This might be ONDCP's version of a "funny" post. And it is kinda funny in a sad way, although the officers' version of what the man actually said sounds a bit too perfect to me (note also that he didn't actually get in much trouble because the plants were unimpressive).

Regardless, nothing could be more disingenuous than ONDCP's feigned dismay over this incident. Believe me, they love it when stupid people get arrested for pot and they pray for anything to happen that could be construed as a negative consequence of protecting patient access.

If hapless growers get the wrong idea, it's because every attempt to pass a medical marijuana law is turned into a confusing, high-profile controversy by ONDCP. It is those opposing medical marijuana laws who obscure their meaning and feverishly equate them with broader legalization. If the drug czar's office shut up about it, programs like New Mexico's could be established around the country with less and less fanfare each time.

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The Latest Imprisonment Numbers Are Out; No Surprises

The Bureau of Justice Statistics will tomorrow officially release its latest annual report on the number of prisoners in America. It's pretty much the same old story, one I'm sick of writing every year, and it has a title like this: "Number of Prisoners in America At All-Time High (Again)" According to a BJS press release today (which apparently will not appear on their web site until tomorrow):
LARGEST INCREASE IN PRISON AND JAIL INMATE POPULATIONS SINCE MIDYEAR 2000 More Than 2.24 Million Incarcerated as of June 30, 2006 WASHINGTON -- During the 12 months that ended June 30, 2006, the nation's prison and jail populations increased by 62,037 inmates (up 2.8 percent), to total 2,245,189 inmates, the Justice Department's Bureau of Justice Statistics (BJS) reported today. State and federal inmates accounted for 70 percent of the increase. At midyear 2006, two-thirds of the nation.s incarcerated population was in custody in a state or federal prison (1,479,179), and the other one-third was held in local jails (766,010). The number of prisoners under the legal jurisdiction of state or federal correctional authorities -- some of whom were held in local jails -- increased by 42,942 prisoners (2.8 percent) during the 12 months ending June 30, 2006, to reach 1,556,518 prisoners. In absolute number and percentage change, the increase in prisoners under state or federal jurisdiction was the largest since the 12 months ending on June 30, 2000. The growth in state prisoners was due largely to a rise in prison admissions, up 17.2 percent between 2000 and 2005. During the same period, releases from state prisons increased at a slower rate, up 15.5 percent. New court commitments totaled 421,426 during 2005, a 20.3 percent increase since 2000, and parole violators returned to prison totaled 232,229, up 14.1 percent. Forty-two states and the federal system reported an increase in their prison populations during the 12 months ending June 30, 2006. Idaho had the largest percentage increase (up 13.7 percent), followed by Alaska (up 9.4 percent) and Vermont (up 8.3 percent). Eight states reported declines in their prison populations, led by Missouri (down 2.9 percent), Louisiana and Maine (both down 1.8 percent). The number of federal prisoners increased by 3.6 percent to reach 191,080 prisoners. At midyear 2006 the federal system had jurisdiction over more prisoners than did any single state, including California and Texas, which had jurisdiction over 175,115 and 172,889 prisoners, respectively. The number of local jail inmates increased by 2.5 percent during the year, the smallest annual percent change since 2001. Since 2000, the number of unconvicted inmates held in local jails has been increasing. As of June 30, 2006, 62 percent of inmates held in local jails were awaiting court action on their current charge, up from 56 percent in 2000.
There's more to the press release, but the above is the gist of it. This annual report does not, if I recall correctly, include a breakdown by offense, which means I have to hunt through other BJS reports to come up with a likely number of drug offenders behind bars. I've been saying "around a half million" for the past three or four years. Maybe now we'll be able to say "more than half a million." But you'll have to wait until Friday, when my story on this comes out. For those who can't wait to read the BJS report, it will be available here tomorrow morning. In the meantime, ain't it great to live in the land of the free?
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NORML's open letter to Sen. Norm Coleman

[The letter, complete with pictures, can be found at http://www.celebstoner.com/content/view/243/34/] Minnesota Senator Norm Coleman acknowledges on his website that he was a "campus organzizer in the '60s" when he attended Hofstra University in Hempstead, NY. His Wikipedia entry states: "He ran for student senate and opined in the school newspaper that his fellow students should vote for him because he knew that 'these conservative kids don't fuck or get high like we do... Everyone watch out, the 1950s' bobby-sox generation is about to take over.'" Several photos (reproduced here) show the then longhaired Coleman speaking through a bullhorn and unfurling an anti-war banner with other students. Since that time, the Brooklyn, NY-born politician graduated from the University of Iowa Law School and stayed in the Midwest, where he worked as a prosecutor in Minnesota for 17 years before his two terms as mayor of St. Paul. In 1996, he switched parties - from Democrat to Republican - and in 1998 he lost the Minnesota governor's race to Jesse Ventura. In 2002, Coleman was elected senator by a 2% margin. He benefitted from the sudden death of the state's incumbant Paul Wellstone, who died in a plane crash 11 days before the election. NORML board member Norm Kent, who is a lawyer as well, went to Hofstra with Coleman. Kent recently received a form letter from Coleman regarding his current anti-marijuana positiion. It reads, in part: "I oppose the legalization of marijuana because, as noted by the Office of National Drug Control Policy, marijuana can have serious adverse health affects on individuals. The health problems that may occur from this highly addictive drug include short-term memory loss, anxiety, respiratory illness and a risk of lung cancer that far exceeds that of tobacco products. It would also make our transportation, schools and workplaces, just as examples, more dangerous." Offended by Coleman's comments, Kent fired of a letter to his former smoking buddy. NORM KENT'S LETTER TO SEN. NORM COLEMAN Dear Mr. Coleman, My friend Norman. Years ago, in a lifetime far away, you did not oppose the legalization of marijuana. Years ago, in our dorm rooms at Hofstra University, you, me, Billy, your future brother-in-law, Ivan, Jonathan, Peter, Janet, Nancy and a wealth of other students smoked dope. Sure, we had to tape the doors shut, burn incense and open the windows, but we got high, and yet we grew up okay, without the help of the Office of National Drug Control Policy's advice. We grew up to become lawyers. Our other friends, as you go down the list, are doctors, professors, parents, political consultants and professionals. No one ever got cancer from smoking pot or diabetes from using a joint. And the days of our youth we look back fondly upon as years where we stood up, were counted and made a difference, from Earth Day in 1970 to helping bring down a president and end a war in Southeast Asia a few years later. We smoked pot when we took over Weller Hall to protest administrative abuses of students' rights. You smoked pot as you stood on the roof of the University Senate protesting faculty exclusivity. As the President of the Student Senate in 1969, you condemned the raid by Nassau County police on our dormitories, busting scores of students for pot possession. You never said then that pot was dangerous. What was scary then, and is as frightening now, is when national leaders become voices of hypocrisy, harbingers of the status quo, and protect their own position instead of the public good. Welcome to the crowd of those who have become a likeness of which they despised. Welcome to the mindless myriad of legislators who gather in cocktail lounges to manhandle their martinis while passing laws against drunk driving. We have seen more people die last year from spinach then pot. We have endured generations of drug addicts overdosing on a multitude of drugs, from heroin to crystal methamphetamine. In your public life, as an attorney general, mayor and United States senator, you have been in the forefront of speaking out against abuses which are harmful. You have been a noble and honorable public servant. How about not being such a dope on dope? How about admitting that if the Rockefeller drug laws were applied to Norman Bruce Coleman on Long Island in 1968, or to me, or to our friends, and fellow students, you, I and others we knew and loved might just be getting out of jail now? How about recognizing that for too long too many have been wrongly arrested, unjustly prosecuted and illegally incarcerated for unconscionable periods of time? How about recognizing that you have peers who have smoked pot for 25 years or more and they are successful record producers, businessmen and parents? How about standing up and saying you have heard and witnessed countless stories of persons who have used pot medicinally, as I have, to endure the effects of chemotherapy? You who have travelled to Africa and seen the face of AIDS so up close and personal would deny medicinal marijuana relief to those souls wasting away from malnutrition, nausea and no access to fundamental medicines? How about not adopting the sad and sorry archaic path of our office of drug control, which this week suggested pot smokers are more likely to become gang members than others? How about standing up and saying: "I, Norm Coleman, smoked pot in 1969." That "I am not a gang member, a drug addict or a criminal." How about saying: "I was able to responsibly integrate my prior pot use into my life, and still succeed on my own merits." How about standing up not only for who you are, but who you were? How about it, Norm? I will always love, admire and cherish what you have achieved and accomplished and the goals you have met. I will always fondly look at the remarkable success of your present. How about you looking back at your past and saying: "What I did was not so wrong and not so bad and not so hurtful that generations of Americans should still, decades later, be going to jail for smoking pot - nearly one million arrests for possession last year." Can't Norm Coleman come out of the closet in 2007 and say "These arrests are wrong - that there is a better way, and we need to find it." You might find more integrity and honor in that then adopting the sad and sorry policy of our Office of National Drug Control Policy. You might find the person you were. Norm Kent
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DPA Press Release: "Bong Hits 4 Jesus" Decision Weakens Free Speech; Schools Can Censor "Pro-Drug Use Speech" But Criticism of Drug War is Protected

For Immediate Release: June 25, 2007 For more info: Tony Newman, T: (646) 335-5384 “Bong Hits 4 Jesus” Decision Weakens Free Speech; Schools Can Censor “Pro-Drug Use Speech” But Criticism of Drug War is Protected Advocates Concerned about “Drug War Exception” to the First Amendment and Who Will Determine What is Inappropriate Speech The Supreme Court issued a mixed opinion in the case of Morse v. Frederick, allowing censorship of student speech that promotes illegal drug use while affirming the core principle that political speech questioning the wisdom of the war on drugs is constitutionally protected. The case focused on Joseph Frederick, who was suspended in 2002 from a high school in Alaska after displaying a “Bong Hits 4 Jesus” banner during a class trip to see the Olympic torch parade pass by. Justice Alito in his concurring opinion, joined by Justice Kennedy, makes clear that he only joins the majority in so far as it protects speech “that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” “We take mild comfort that the decision clearly protects speech challenging the war on drugs. Never before has the Supreme Court stated so clearly that speech attacking the wisdom of the war on drugs is protected wherever it may occur,” said Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance. “But who is going to decide what is appropriate speech? Students are on the front lines of the war on drugs, and we are deeply concerned that free speech will now be administered by those who may wish to suppress open discussion on a range of topics such as the effectiveness of the D.A.R.E. program, school drug testing policies, or random locker searches,” said Abrahamson. “Our Constitutionally protected rights to free speech shouldn’t have an arbitrary drug war exception.” As Justice Stevens recognized in his dissent: “Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views.” The First Amendment should not be curtailed by a “nonsense banner” containing “an oblique reference to drugs,” lamented Stevens, who was joined by Ginsburg and Souter.
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Justices Stevens, Souter, & Ginsburg: Drug Policy Reform Sympathizers?

As noted by Pete Guither in his excellent 'Bong Hits 4 Jesus' coverage, this passage from Justice Stevens in his dissenting opinion is quite remarkable:
…the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.
What a profound statement on the importance of publicly debating marijuana laws. Rarely, if ever, has a member of the Court addressed this issue with such candor. It's also noteworthy that his colleagues, Souter and Ginsburg, signed onto this. Stevens's point can't reasonably be characterized as a direct critique of marijuana laws, but he certainly endeavors to legitimize that viewpoint in the marketplace of political ideas.

Although the 'Bong Hits 4 Jesus' banner itself lost today, this case has provided a strong indication of the Court's familiarity with the political debate over our nation's drug laws. What appears on the surface to be a victory in the anti-drug crusade has proven to be more nuanced, which may explain why ONDCP has remained silent today.

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Bong Hits 4 Jesus: Today's Ruling Does Not Affect Political Speech

Today's Supreme Court ruling in the notorious 'Bong Hits 4 Jesus' case (aka Morse v. Frederick) was a disappointment. Still, without naming names, I think some of my colleagues in the blogosphere have missed an important point in their haste to condemn the Court.

It is vitally important that students and school administrators get the right message about what this ruling does and does not say about drug related speech in school. Morse v. Frederick states that the 1st Amendment does not protect speech advocating illegal drug use. Nonetheless, a majority of Supreme Court Justices clearly agree that political speech criticizing the war on drugs should be protected.

As Pete Guither highlights, Alito's concurrence addresses the burning question of what this ruling means for students who wish to speak out about drug policy itself:

I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'

The Court's majority conclusion that Frederick's 'Bong Hits 4 Jesus' banner constituted unprotected pro-drug speech during school was dependent on Alito and Kennedy's concurrence. In short, a majority of the Court's justices expressly reject the notion that political speech advocating drug policy reform could be restricted in the same fashion.

It is exactly this question which compelled Students for Sensible Drug Policy and the Drug Policy Alliance to file Amicus briefs with the Court, and it is clear that reformers got the straightforward answer we were looking for.

Along these lines, it's also notable that Chief Justice Roberts's majority opinion responds to Alito by noting that the banner was not political speech. Thus, even the Court's majority acknowledges that today's ruling in no way constitutes a restriction on speech that merely criticizes the drug war.

None of this is to say that Morse v. Frederick is a good ruling. Indeed, the Court has rarely looked sillier than it does today. It is the height of arrogance to decide arbitrarily what 'Bong Hits 4 Jesus' even means in the first place, and then base a 1st Amendment ruling that affects everyone on something so subjective and nonsensical. Morse overflows with hyperbole about the dangers of drugs to America's youth, as if a 'Bong Hits 4 Jesus' banner could somehow exacerbate such problems. Yeah, it's a remarkably stupid ruling in that regard.

But to ignore the Court's deliberate defense of political speech is to disregard the primary concern that drew the attention of drug policy reformers to this case in the first place. Certainly there are ambiguities, and today's ruling is far from an endorsement of widespread drug policy debate on high school campuses. How students and administrators ultimately interpret the ruling will vary and more litigation will likely be needed. But it is precisely for this reason that defenders of free speech must be measured in our criticism. Nothing could be more harmful than allowing this case to be understood as restricting speech that it does not in fact restrict.

So, while gray areas abound, the logical interpretation of Morse v. Frederick is that political speech advocating drug policy reform (though not drug use itself) is protected under the 1st Amendment.

Go get 'em, students. If you need some better banner ideas, contact Students for Sensible Drug Policy.

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