Bong Hits 4 Jesus – the full & final story

Tuesday, November 30, 2010

The limits of my language mean the limits of my world.
— Ludwig Wittgenstein

It is a wondrous line, that passage from Wittgenstein’s Tractatus (1921). It could readily serve as a First Amendment maxim. For we come to learn our world, in real measure, from the ways by which we speak of it, from how we give expression to what we perceive, and from how we communicate between one another. In all of these ways and others, one of the First Amendment’s high purposes is to keep dialogue alive and vibrant. Or as Justice Louis Brandeis so eloquently put it in his concurrence in Whitney v. California (1927): “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

Harvesting the story
Taking his conceptual cue from the two famous messages from those two great men, James C. Foster has written a valuable addition to the literature of free speech in America. I refer to his just-published Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska’s Capital. In this well-written, thoroughly researched, evenly balanced and thoughtful book, Foster (a political science professor from Oregon State University, Cascades) has offered what is likely to be the definitive book on Morse, et al. v. Frederick (2007) — the case of the Juneau-Douglas High School students who unfurled a controversial 14-foot banner. (The infamous “Bong” banner now hangs in the Newseum.)

Kudos to the University of Alaska Press for publishing this 380-page volume with its 1,587 endotes, many of which are annotated. The book is chock-full of fascinating facts and engaging narratives brokered by a narrator with a genuine commitment to free speech that is neither cowardly nor preposterous. In a world where “common ground” is too often bantered about as a mindless mantra, Foster actually manages to find it. For that reason alone, this book makes for a salutary supplement to the Morse case. Foster’s book is a useful and corrective guide for anyone interested in how to navigate the waters where conflicts abound over how much protection to give to student speech deemed dangerous or offensive or provocative.

Still, there are nits to pick: Photographs within the book would have been nice, a bit of scalpel editing would have improved an otherwise strong narrative, and a greater dollop of doctrinal analysis would have pleased scholars more. But such quibbles do not really dim the luster of this splendid achievement of a book that manages to bring the insights of law, political science, anthropology and literature into the fold of a well-woven narrative, one that ably blends the contextual lessons of legal realism with the educative value of real-life stories drawn from the caldron of legal conflicts.

It’s all here, the life and law stories of the main players (Joseph Frederick, the student “Hero of free expression,” and Deborah Morse, the principal and “Protector of student safety”), their lawyers (Douglas Mertz, counsel for Frederick, and David Crosby, counsel for Morse) and the school officials and 13 jurists (from federal district court, 9th U.S. Circuit Court of Appeals, and U.S. Supreme Court) who grappled with the controversy that grew out a student display of a silly banner that read “BONG HiTS 4 JESUS” at an Olympic torch relay that passed by the Juneau-Douglas High School. Twenty-seven interviews combined with numerous excerpts from trial and appellate briefs and transcripts (including those offered by 15 Supreme Court friend-of-the-court briefs) are buttressed by an array of resources (local, national, legal and academic) to provide the backbone for Foster’s book. Without missing a biographical beat, his informed account harvests the history of the story from its beginning on Jan. 24, 2002 (the date of the banner incident), through its Nov. 3, 2008, conclusion (the date of the settlement agreement and mutual release).

There are also several lessons here, only two of which will I address. The first is implicit in Bong Hits 4 Jesus, the second explicit. One has more to do with lawyering, the other more to do with conflict resolution.

State law: the overlooked corpus
It is a basic though often overlooked tenet of public-interest litigation: When state and federal claims co-exist, the state ones should be raised and litigated fully before their federal counterparts. Yet, in a world intoxicated with federal constitutional law, state-law claims are all-too-regularly skipped over en route to the big claims like First Amendment challenges. Thus it was in Morse v. Frederick.

In the book’s final chapter, after the Supreme Court has rendered its ruling in Morse, and six years into the case, there is this statement from Frederick’s lawyer, Mertz: “We believe the state constitution offers greater protection … from censorship than the federal constitution.” Of course, there was precedent for this view. For example, as early as 1995, the Alaska Supreme Court, in Shepherd v. State, 897 P.2d 33, 38, announced its willingness to review its state constitutional law independent of whatever the Supreme Court ruled in connection with parallel provisions of the federal Constitution.

By that logic, it would seem that the best course in Morse would have been to litigate the Alaska constitutional claims first, presumably in state court. Had that been done, and had the state high court ruled in Frederick’s favor on independent state grounds, the controversy could never have gone to the high court and the further dismantlement of Tinker v. Des Moines Independent Community School Dist. (1969) would not have occurred.

But that did not happen. Here is what did: On remand a federal district judge was called upon to determine the validity of Frederick’s “claims for declaratory and injunctive relief under Article I, Section 5, of the Alaska Constitution.” While the original 2002 complaint seems to have raised both state and federal constitutional claims (see ACLU press release), somehow the state-law claims got lost in the constitutional shuffle.

As it turned out, the Alaska free-speech claim was never resolved because the parties entered into a settled agreement, which rewarded Frederick $45,000 for abandoning his state-law claims in the 9th Circuit. (The school district’s fear was that the 9th Circuit might rule in Frederick’s favor, thus generating more litigation expenses and the possibility of an adverse ruling.)

Bottom line: To this day, we do not know whether there is a “drug speech exception” to the free-expression rights of Alaska students under Article I, Section 5 of the state constitution. A missed opportunity, indeed.

Imagine: a dialogic alternative
Their dispute need not have come to litigating. They had other choices.
— James C. Foster

The final chapter of Bong Hits 4 Jesus is novel; it invites thinking. There is much sage advice in this chapter that lawyers, judges and school officials should surely consider. What is especially alluring about Foster’s approach to conflict resolution is how he calmly and skillfully intertwines the dialogic purpose of the First Amendment with the resolution of the case without litigation. In other words, had the school officials and students tried to talk this matter out, had mediation been used to help to do this, and had the courts ordered the parties to make their respective positions clear for the record by means of further discussion, First Amendment values could have been advanced.

“One would think,” writes Foster, “that the very ambiguity of Frederick’s banner would invite, nay, demand further conversation about its meaning. Rather than ‘fixing on the principal’s interpretation,’ thereby silencing Frederick, the Court should have validated Morse’s authority to speak to Joe about his banner, as distinguished from affirming her authority to discipline Frederick.”

That is, given these circumstances, the principal “was constitutionally obligated to engage Frederick in conversation in order to address the problem he created.” Here is how Foster imagines such a conversation might have proceeded when the principal first approached Joe Frederick and his fellow students as they hoisted the “Bong” banner:

Principal Morse: Hi folks, I want to talk to you. What’s going on here? What’s up with the banner? Whose idea was the message?

Joe Frederick: There is no message.

Principal Morse: No message! What’s BONG HITS 4 JESUS mean?

Joe Frederick: Nothing. It’s nonsense.

Principal Morse: Nonsense? Then what’s your point? Why go to all the trouble of making the banner and bringing it to the relay?

Joe Frederick: To get on TV, and to test if free speech really exists at Juneau-Douglas.

Principal Morse: Your speech rights aren’t at issue here, Joe. The problem is wrong words at the wrong time. “BONG HITS 4 JESUS.” What were you thinking? Not a good idea. Not acceptable. You need to take the banner down.

Joe Frederick: What about my First Amendment rights?

Principal Morse: Everybody has First Amendment rights, and nobody’s rights are absolute. Please — let’s fold up the banner then let’s go talk about rights and responsibilities inside, in my office. C’mon everybody. It’s cold and my feet are freezing.

Though my litigator mindset is somewhat uneasy about such an approach (especially the “take the banner down” line), there is, nonetheless, something to be said for bringing the First Amendment to the scene of the crime and putting it to work. It is just that gospel that my colleague Charles Haynes has been preaching for decades.

Had this dialogue been engaged early on, it could have prompted a school-wide/community-wide discussion about drug speech and free speech. This approach, Foster stresses, aligns the First Amendment with dispute resolution. This approach, which tracks Lewis & Clark Law School professor Steve Kanter’s thinking, stands to turn First Amendment disputes into First Amendment dialogues. (See Kanter, “Bong Hits 4 Jesus as a Cautionary Tale of Two Cities,” 12 Lewis & Clark L. Rev. 61 (2008).)

A way of life
The First Amendment is more than an abstract law or a bundle of mindless rights. It is a way of living and engaging. It helps us, both legally and inspirationally, to keep discourse alive, to make toleration possible, and to resolve our differences by words rather than war. The more we limit dialogue, the more we limit our worldview and our understanding of it. When litigation, such as that in Morse v. Frederick, runs afoul of this maxim, it cuts against the grain of the First Amendment. Teachers and students alike take note: Think about it, take a deep breath, and then try talking, preferably calmly. It just might work. That, at least, is what James Madison woud have hoped.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School and a fellow at the First Amendment Center. His latest book is The Fundamental Holmes: A Free-Speech Chronicle and Reader (Cambridge University Press, 2010). His next book, with Sam Chaltain, is We Must not be Afraid to be Free: Stories About Free Expression in America (Oxford University Press, 2011).