Saturday, March 24, 2007

A new type of unprotected speech?

Interesting article by Daniel Abrahamson of AlterNet (), analyzing the "Bong Hits 4 Jesus" case. In reviewing the judges' questioning at oral argument, Abrahamson seems to think some judges are leaning towards making "drug speech" a less protected form of speech, because it could lead to Bad Things, namely teen drug use.

I'll believe the Supremes will actually do that only when I see it. Whatever else you may think of Scalia, I can't imagine the guy who wrote the anti-cross-burning opinion would stand for that kind of foolishness. But, I guess we'll see. It will definitely be interesting to see how the new Roberts-Alito court handles a legitimate free speech case.

Although, in all honesty, this case really could boil down not to a speech case, but a forum case. The student in question was not on school property, but there are two relevant points. One, the school was out that day for a "field trip," and two, the student himself was truant. So, this case will turn not nearly so much on the speech itself, but the status of the student.

But, still, it's free speech stuff. My absolute favorite. Enjoy.

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On Monday, March 19, the Supreme Court heard a case concerning the scope of student speech in public high schools. The case, Morse v. Frederick, involved an 18 year old high school student who was punished by school officials for displaying a banner on a sidewalk across the street from his school. The banner was destroyed and the student was suspended because officials believed the banner, which read "Bong Hits 4 Jesus," touted a pro-drug message in violation of the school's anti-drug policy.

The case has the potential to impact a wide swath of student expression. The Court, however, could walk a narrower path and carve out as undeserving of constitutional protection just one type of speech: drug speech. Based on the justices' questioning at oral argument, it appears that a majority of the Court may be inclined to refashion the Nancy Reagan's mantra "Just Say No" into "Don't Even Say It," when it comes to student speech that references drugs.

One of the most disturbing features of the Supreme Court argument was the fact that most of the justices appear to believe that because drugs in high schools are a scourge worth combating, student speech about drugs -- and by extension drug policy -- is likely to encourage student drug use. The justices, in other words, equated student speech about drugs with drug use itself, and a majority may permit school administrators to censor the former in the hopes of snuffing out the latter.

But this conflation of speech and conduct is unwarranted and dangerous. It was telling that the very same Ken Starr, who argued in favor of student censorship appeared on the Supreme Court steps for media interviews along with former Drug Czar Barry McCaffrey who, a decade ago, warned physicians who spoke about the potential medical benefits of marijuana that they "sent the wrong message" to youth. McCaffrey was so convinced that physician speech would incite adolescent drug use that he threatened to punish doctors who recommended medical marijuana to their sick and dying patients. The federal courts struck down McCaffrey's plan because it violated doctors' First Amendment rights. Studies now show that adolescent marijuana use is actually lower in those states that protect the cultivation and use of marijuana for medical purposes.

To date, neither the government, nor schools nor the media have succeeded in crafting messages that actually prevent the use of alcohol and other drugs among students. As the independent U.S. Government Accountability Office found, after investigating the most widespread prevention program of all time, there is "no significant differences in illicit drug use between students who received DARE (Drug Abuse Resistance Education) and students who did not." The GAO also panned the Drug Czar's billion dollar Youth Anti-Drug Media Campaign, concluding that the now infamous TV and radio spots, including those equating adolescent drug use with terrorism were "not effective in reducing youth drug use."

These facts are not an argument about the futility of prevention education, but rather about the futility of censorship. What should matter most is that the message actually induces its audience to engage in less harmful behavior. History has repeatedly shown the opposite: that censorship has been ineffective in advancing governmental interests.

School censorship of speech about drugs is a profoundly bad drug abuse prevention strategy. A student sitting at a personal computer can retrieve 22 million websites by typing in the word "marijuana" into a search engine -- with those of the White House Office of National Drug Policy and Drug Policy Alliance, organizations advocating disparate policy views, among the first appearing. As those who study adolescent drug attitudes recognize, strategies that deny that students' right to hear a range of opinions -- from friends, adults or the media -- do not work. Nor do those that discount students' intelligence and experience, or that lack candor and credibility. In short, curtailing student speech bears no reasonable relationship to reducing drug use.

Students are especially affected by -- and distinctly qualified to speak about -- a number of drug policies that are the subject of intense debate: the lengthy sentencing laws that incarcerate hundreds of thousands of parents, siblings and friends; the mounting data impugning random student drug testing; widespread racial inequities in the enforcement of drug laws; and the increasing difficulty grandparents to obtain adequate pain relief. Students have a unique perspective on many of these important issues and society has a strong interest in hearing from them.

A Supreme Court decision saying that because adolescent drug use is bad adolescent discourse about drugs is unworthy, or less worthy, of constitutional protection would be a serious blow to First Amendment principles. But such a ruling would also enshrine in national law a needlessly cynical view of the abilities and responsibilities of high school students to discuss timely, albeit controversial matters. It is irresponsible to ignore what high school students actually think, know, and believe about drugs or to punish them because high school officials do not like what they have to say. We do so at our peril.

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