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Court Rulings

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.

4th Amendment Victories in State Courts

Cross-posted from Flex Your Rights

We've got some more required reading for all you "4th Amendment is dead" fools who keep farting on our freedom parade. I know, there's no shortage of police, judges, and prosecutors who can't find big enough boots to trample your rights with. Believe me, I know. But the law evolves over time, as does the behavior of our public servants. This month brought a couple examples of the ability of State Courts to set a higher threshold of 4th Amendment protection for the citizens they serve.

This week, the Wyoming Supreme Court rejected the State's argument that the inadvertent discovery of marijuana in a home justified searching a lockbox found elsewhere in the residence.

The Supreme Court, in an opinion written by Justice William Hill, said the state failed to prove the search that disclosed the evidence which was the basis for the charge against Benton was reasonable under the Fourth Amendment to the U.S. Constitution and the Wyoming Constitution.

Hill's opinion quoted the amendment that protects citizens against unreasonable searches and seizures and case law "because we wish to make clear that the issue presented in a case such as this is one of the most important known to Anglo-American jurisprudence."
Meanwhile, in Vermont, the State Supreme Court has issued an impressive ruling declaring that post-arrest vehicle searches require a warrant. I've long lamented the unfortunate search-incident-to-arrest doctrine, which holds that officers may automatically search a vehicle after arresting the driver. I understand that police believe arrestees are more likely to be involved in unrelated criminal activity. Still, the "officer safety" justification that has been used to uphold these searches simply doesn't apply, since an arrested suspect has no access to their vehicle.

Vermont has now departed from U.S. Supreme Court precedent by requiring that officers obtain a warrant before performing post-arrest vehicle searches. Constitutional minimum standards require states to uphold at least the same amount of Bill of Rights protection as the federal government. Pete Guither observes hilariously that "actually, the federal Bill of Rights provides greater protections from unreasonable searches and seizures than does the federal government."

Still, the failure of the federal government to abide by their own standards does not displace the important ability of states to provide greater levels of privacy protection to their citizens. I think this pretty much says it all:
"The warrant requirement is robust, alive and well under the Vermont Constitution. It's gasping on life support under federal law," said Michael Mello, a professor at Vermont Law School in South Royalton. "It's a reaffirmation of Vermont -- we're special, we're different -- and the subtext is we're smarter and better than you, United States Supreme Court."
Let's hope other states continue to outsmart the U.S. Supreme Court. When it comes to the 4th Amendment, it really isn't that hard.

Don't Go to Indiana

From the Tribune-Star in Terre Haute, Indiana:
The Vigo County prosecutor’s office, the Terre Haute Police Department and Vigo County Sheriff’s Department will be conducting intermittent driver’s license checks at an undisclosed location in Vigo County.

When I hear that Indiana police are conducting “driver’s license checks”, my constitutional spidey-sense goes off. Afterall, these are the folks who brought us the drug checkpoint. And when that got overruled by the Supreme Court, they came out with the similar, but more sinister “fake drug checkpoint.”

Drugged Driving: Michigan Supreme Overturns Itself on Marijuana Metabolites Issue

In 2006, the Michigan Supreme Court ruled that people could be prosecuted as drugged drivers based solely on the presence of marijuana metabolites in their bodily fluids. Now, a more liberal Supreme Court has overturned that decision, holding that marijuana metabolites are not controlled substances and the states drugged driving law can thus not be applied to them.