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…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.

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.

http://stopthedrugwar.org/chronicle/468/newark_new_orleans_drug_war_crackdown_crime_murder (Chronicle article) http://stopthedrugwar.org/prohibition_in_the_media/2007/jan/09/irony_newark_launches_groun (blog post) http://stopthedrugwar.org/chronicle/468/newark_drug_force_wont_achieve_its_goals (editorial)

"These men are not saints who have died, but they are our sons... Take away my tie, take away my suit, and about 10 years, and I fit that description: young black men dying in our city at rates that are unacceptable."

If the people doing the fighting are members of our collective family, to be rescued where possible from a negative environment that has lured them into a criminal lifestyle, why is the centerpiece of the new effort a law enforcement campaign that can only end with the long-term incarceration of many of "our sons"? Youthful confusion and feelings of desperation don't magically end after 17 years and 365 days, and New Jersey's drug laws for adults are harsh, as are federal drug laws. How many of "our sons" will end up in prison for long periods of time, sent there because of this new program?

"The drug war is causing crime," Booker says. "It is just chewing up young black men. And it's killing Newark."

"I'm going to battle on this," the mayor says. "We're going to start doing it the gentlemanly way. And then we're going to do the civil disobedience way. Because this is absurd. "I'm talking about marches. I'm talking about sit-ins at the state capitol. I'm talking about whatever it takes."

1. Is the narcotics task force he talked about in January operating, and if so, what exactly is it doing?
2. Is the city doing everything it can to prevent these young men from ending up in the clutches of the state's harsh sentencing regime -- through policing prioritization, prosecutorial discretion, etc.?
3. What about ending prohibition? It's not just that people are angry and hopeless, it's also the money in the illegal drug trade that is getting so many people recruited into lives of crime and paying them to stay there. Only legalization can break that link.