Supreme Court Rules on "Bong Hits" Case

In June, the United States Supreme Court issued a narrow 5-4 decision in the “Bong Hits 4 Jesus” case, ruling in favor of a school district’s right to punish student speech that promotes illegal drug use. However, the Court specifically agreed with Students for Sensible Drug Policy that students cannot be punished for expressing opinions about drug policy.

The Morse v. Frederick case began when a high school student was suspended for displaying a banner at an Olympic torch parade that read “Bong Hits 4 Jesus.” The student sued the district and won, but the Supreme Court overturned the decision.

SSDP filed an amicus brief because we were concerned that a negative ruling would curtail students’ abilities to discuss drug policy reform in public schools, or even allow schools to prevent students from forming SSDP chapters. The school district had argued that any speech that could be “reasonably gleaned” to express a positive sentiment about drugs (including promoting the legalization of marijuana), or to be contrary to the school’s “anti-drug” mission (like criticizing drug testing or locker search policies), could be a punishable offense.

Thankfully the Supreme Court agreed with the arguments SSDP set forth in our brief, limiting punishable speech to that which expressly promotes drug use. In the majority opinion, Chief Justice Roberts states: “This is plainly not a case about political debate over the criminalization of drug use or possession.” In a concurring opinion, Justices Alito and Kennedy joined 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.”

Clearly, the arguments put forth in SSDP’s brief, and those of our allies like the Drug Policy Alliance and the American Civil Liberties Union, played a role in ensuring that the justices drew a line between speech that promotes drug use and that which promotes drug policy reform. However, 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.

While SSDP’s legal work may have helped shape the outcome of this ruling, we undoubtedly influenced media’s portrayal of the case. During the oral arguments, SSDP flew in high school students from across the country to demonstrate in front of the Supreme Court, holding up “Free Speech 4 Students” banners. Our rally became the lasting visual image of the case, being featured on CNN.com, CBS.com, MSNBC.com, Fox News, USA Today, The New York Times, The Washington Post, The Economist, and every major TV news outlet. You can view press coverage, including a montage of video news clips, at
http://www.ssdp.org/freespeech/

The decision is a mixed bag for the free speech rights of students, but we are thankful that the Court had the wisdom to protect our right to debate drug policy issues in schools. Perhaps most inspiring are the words of Justice Stevens, joined by Justice Souter and Justice Ginsburg, in their dissent, which provides hope for anyone who believes that the War on Drugs has failed our society. They addressed the issue eloquently and directly, stating:

“Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana 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, 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, 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.”

Justice Stevens, Students for Sensible Drug Policy respectfully concurs.

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