Bong hits 4 Jesus? How about a bong hit 4 the justices!

Over the weekend, I saw what was either a 13 or 14 year-old boy walk into the lobby of a public skating rink wearing a T-shirt that said, "Budweiser, King of Beers." I saw another boy in the same age range wearing a T-shirt that advertised a California winery. A third boy emerged from the hallway leading to the dressing rooms wearing a hat that said "Duff Beer." For the uninitiated, Duff is The Simpson's take-off on Anheuser-Busch, which makes Budweiser. I know these boys are all 13 or 14 because they were playing in a hockey game where every boy is 13 or 14.

I also saw a girl who appeared to be 13 or 14 wearing a T-shirt that said, "Handle With Care" right across her breasts. I saw another girl who could not have been older than 15 wearing a spaghetti-strapped tank top with the phrase, "Danger Zone" across her breasts. No snickers, please -- both girls were standing next to me in the snack bar line.

I am assuming that all five teenagers are enrolled in local private or public schools. For the sake of argument, let's say that they are. Are the three boys endorsing underage drinking by wearing clothing that features beer and wine? Is the boy wearing the Duff cap endorsing anything at all, since there is no such thing as Duff beer? And the girls . . . are they soliciting sex by wearing shirts with sexually suggestive themes? Or are they just attempting to attract attention that, if reciprocated to the fullest, would probably be unwelcome and perhaps frightening?

Now, imagine that the Montgomery County Public School system (which serves my community and in which both my children are enrolled) has given its students the day off to honor returning Iraqi soldiers and other support staff (health professionals, technicians, contractors, etc.). Let's imagine that our neighborhood has organized a parade that will pass in front of our middle school. And let's say that a handful of students are standing across the street from the school holding the following banners, which are, oh, I don't know, about 12-14 long with two-foot letters:

"U.S. Out of Iraq"
"Legalize Marijuana"
"Stop Torture"

A local television has sent a reporter to cover the parade. The cameras turn to the three banners, and the reporter remarks that students from North Bethesda Middle School are holding them. The school principal sees a five-second shot of the banners on TV, calls the school superintendent's office and asks whether he has the power to suspend the students. You are the lawyer charged with giving the principal advice. What do you do?

The answer is: nothing. These are students in their private capacity, and they have the right to say what they want in a public place as long as they do so peacefully.

Easy case? Yes, it is. But the Supreme Court heard a case yesterday that might well give school administrators near-limitless discretion to punish students for speech considered inappropriate or disruptive to the "educational mission" of a public school. Worse, the speech in question is so nonsensical that it defies a specific meaning. Years ago, Alaska high school student Joseph Frederick unfurled a banner during a 2002 parade honoring the passing of the Olympic torch through his hometown of Juneau that read, "Bong Hits 4 Jesus." Frederick did this for no other reason than to get on TV. Right on. No student in my children's cluster of public schools would dream of doing something like this unless it involved AP credit or helped move him off the waiting list at Swarthmore. Frederick's behavior, however, is easily something I could have seen myself or a number of my friends doing in high school for no other reason than we thought it was funny.

So again, easy case? Yes, it is. Frederick was suspended for 10 days, with the school's principal, Deborah Morse claiming that his little stunt was not protected student speech. A trial court ruled in the school's favor, but the 9th Circuit Court of Appeals reversed. And now the justices will decide what schools can and cannot do to their students who express thoughts they do not like. The justices should say that Frederick's speech is precisely what the First Amendment is designed to protect. Although many commentators have linked Frederick's case to the landmark student speech case, Tinker v. Des Moines (1969), in which the Court held that a public school could not punish two high school students who wore black armbands with peace signs to symbolize their opposition to the Vietnam War, I think a more proper analogy is Falwell v. Flynt (1988). In that case, the Court ruled that Jerry Falwell was not libeled when Larry Flynt's Hustler magazine published a cartoon lampooning the Moral Majority founder's "first time" with his mother in an outhouse. The cartoon included offensive sexual commentary and profane language. Nonetheless, a unanimous Court ruled that the cartoon was political satire, an art form with a long history in the United States. Controversial public figures and public officials who believe they can escape the clever pen of an editorial cartoonist should never have entered public life. And this was Chief Justice William Rehnquist, certainly no ACLU-er, writing for the Court. In Cohen v. California (1971), another Vietnam-era case, the Court ruled that a person wearing a denim jacket that said “Fuck the Draft” had a free speech right to express view in a public courthouse. Another Republican appointee, John Marshall Harlan, wrote for the Court in that case. "One man's vulgarity is another man's lyric," wrote Harlan. Indeed. Exactly what did Paul Cohen mean anyway? Did "Fuck the Draft" really mean, you know, "Fuck the draft," as in, "Hey guys, I don't know about you, but I'd love to fuck the draft. I'd even trade my Creedence albums for a shot at the Selective Service Act." Or did he mean, "Fuck the Draft" as in, "Get that draft the fuck out of here," sort of like, "Fuck it!" but not like "If I don't fuck the draft by the end of the weekend I'm gonna go nuts!" Probably more like, "Who the fuck needs the draft?" Perhaps no other word in the English language has so many uses yet means so little.

No one can take the phrase, "Bong Hits 4 Jesus" seriously because it doesn't mean anything. Say it backwards, recite it slowly while watching “The Yellow Submarine” or listening to “Any Colour You Like” from Pink Floyd’s “Dark Side of the Moon and the result is the same: nothing.

Remarkably, several justices appear to have completely missed the point at yesterday’s oral argument. Perhaps that is because Ken Starr – yes, him! – who argued the case on behalf of the school board, stressed during oral argument that the real issue was the school’s power to contain messages promoting the use of illegal drugs.

Say what?

Again, the phrase “Bong Hits 4 Jesus” does not promote illegal drug use or discredit an historic figure. Switch the wording around: “Belly Shots 4 Jesus,” or “Jesus Gone Wild” or simply “4 Jesus.” And what do you get? The first makes no sense at all; the second could be interpreted a number of ways; but the third sends the clearest message of all. My guess is that if Frederick had simply displayed a banner that read “4 Jesus” nothing would have ever happened, even though that short statement carries a clear meaning. So here is a question for the Court: if you can treat Frederick as a student even though he was off-campus to watch a parade on a day in which school was cancelled, then wouldn’t a “4 Jesus” banner put the school in the position of endorsing religion? And if a school punished a student for expressing a religious conviction, wouldn’t that raise a free speech question of another sort?

Ken Starr said school officials must be given the authority to interpret the meaning of the “Bong Hits 4 Jesus” banner. He also pointed out schools have had the historic responsibilities of teaching “habits and manners of civility” and the “values of citizenship.” That might have been true as one point; schools now primarily spend their time teaching to the standardized tests that students take far more often than they work on their manners. But that is different issue.

I wonder what Ken Starr would have thought about students protesting racial segregation in the South during the pre-civil rights era, when even advocating integration was considered a “breach of peace” and punishable by criminal law. Or take that example back to the 1850s, when teaching slaves to read and write was a criminal offense under the slave codes. Or the 1840s and 1830s, when state law prohibited women from holding certain jobs, voting and pursuing a public education. Does Starr believe that the pre-Civil War South and all those other states across the land had it right in denying fundamental social, economic and political rights to women, slaves and others not considered citizens the right to advocate for their freedom? The Dean of the Pepperdine Law School should read Michael Kent Curtis's, "Free Speech: The People's Darling Privilege,'" for absolutely the best explanation going on the relationship between free speech and equality.

Joseph Frederick’s behavior was absolutely juvenile. Then again, he was a high school student at the time, a juvenile under the law and certainly acting in an age-appropriate fashion. The justices need to put the needless invocation of the “drug culture” aside and stick to the free speech issues. Let the reporters covering the case make all the har-de-har-I-know-what-a-blacklight-is jokes they want. Bongs, pot, papers, lava lamps, Bob Marley and dated pop culture references to "one toke over the line (Sweet Jesus," appropriately enough) betray an age and maturity gap on the whole marijuana legalization issue. Plenty of people use marijuana as responsibly as some people use alcohol. In fact, plenty of people who smoke marijuana do not own a black light, like Hostess Cream Filled Cupcakes, struggle with paranoia, hold their hand up to a bright light and think they see their bones, believe that John Lennon said that "I buried Paul" at the end of "I am the Walrus" (he said "cranberry sauce," if that matters) or watch one episode of "Star Trek" after another. Some of the justice's questions not withstanding, this is not a drug case.

Numerous Christian organizations filed briefs on behalf of Joseph Frederick in this case. They understand that if a public school can punish a student for holding a banner that says “Bong Hits 4 Jesus” off school property, then they can punish another student for holding a banner that says simply, “4 Jesus.”

And praise the Lord, what a bummer that would be.