In yesterday's decision in Morse v. Frederick, better known as the "Bong Hits 4 Jesus" case, the Supreme Court's conservative majority appears to have turned on its Christian Right supporters. The Court narrowly held that a public school principal could constitutionally confiscate a nonsensical sign which read "Bong Hits 4 Jesus" from a student because, in the Court's absurd view, it promoted illegal drug use.
Immediately, the Christian Right was distressed. Lawyers who had sided with the student (and the Christian Right's arch-enemy, the American Civil Liberties Union) are now worried that the precedent will be used to restrict their own clients' speech, also supposedly in Jesus' name, but not nearly as frivolous.
Across the country, the conservative legal group the Alliance Defense Fund (ADF) goes to court to vindicate the free speech rights of Christian students to tell their LGBT peers they're going to hell, usually after their speech has run afoul of school policies designed to protect students from harassment and bullying on the basis of their sexual orientation. In one such case, Harper v. Poway School District, which will be heard by the Supreme Court next term, ADF is representing a San Diego high school student who wore a T-shirt to school that read, "Be ashamed, our school has embraced what God has condemned" on the front, and "Homosexuality is shameful, Romans 1:27" on the back.
The "Bong Hits" case vexes ADF, because it fears the precedent will be extended to restrict anti-gay speech that is seen as violating anti-bullying policies, just as the Court held the "Bong Hits" sign violated the school's anti-drug policy.
Since the late 1960s, the Court has stuck to the principle that public secondary school students do not enjoy the same free speech rights on campus as they do in the outside world, a precedent designed to give school officials the leeway to maintain order. The seminal case, Tinker v. Des Moines Independent Community School District, held that students could wear black armbands to school to protest the Vietnam War because it didn't cause a disruption or an intrusion on the rights of other students. Nearly 20 years later, the Court held in Bethel School District v. Fraser that a school could restrict sexually explicit speech because it was offensive, lewd, or indecent -- even if it didn't cause a disruption.
The majority opinion in the "Bong Hits" case, penned by Chief Justice John Roberts, who was joined by the other conservatives on the Court -- Scalia, Thomas, Kennedy, and Alito -- strained to focus its concern on the contravention of the school's anti-drug policy, not the possibility of a disruption or the subjective judgment that the sign was offensive. Yet ADF characteristically portrayed the situation as grim, not for students in general, but for Christian students expressing their conservative religious views at school.
ADF Senior Vice President Jordan Lorence issued a statement that "ADF is concerned about the decision's impact on the majority of student free speech cases that have nothing to do with the advocacy of illegal drug use. Say a school in San Francisco decided its mission was to support what they call 'complete equality for gays and lesbians, women's health, and absolute religious diversity.' That may mean that said school could censor pro-marriage, pro-life and pro-Christian points of view."
Just hours after the "Bong Hits" decision came down, David French, a lawyer who heads up ADF's litigation project on university campuses, fretted on the National Review blog
[H]ere's the rub: Virtually all restrictive speech policies (including over-broad anti-harassment rules or anti-bullying policies that are often used to shut down religious speech on political or sexual issues) are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations. All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics.
Like much of ADF's rhetoric on this issue, Lorence's and French's statements ominously suggest that gay rights represent a threat to the free speech rights of Christians. No one else's rights seem to matter.
But there are ample clues that the Court might be more favorably disposed to ADF's position in the Harper case than ADF's public statements imply, suggesting that the Christian Right's real battle on this issue is taking place in the court of public opinion. Roberts goes to great lengths to limit the "Bong Hits" holding to the restriction of speech that supposedly promotes illegal drug use. He even dismisses the liberal dissenters, who rightly worry that the decision will lead to censorship of unpopular viewpoints, as First Amendment alarmists. (Defenders of the First Amendment may well be alarmed by Thomas' authoritarian concurring opinion, in which he maintains that the First Amendment does not afford public school students any free speech rights, and complains that Tinker "has undermined the traditional authority of teachers to maintain order in public schools.")
But in other cases, Thomas has been very sympathetic to the allegedly censored "Christian" point of view, as has Alito, who as an appellate court judge struck down as unconstitutional a school anti-harassment policy much like those that ADF is condemning.
As usual -- surprise!-- it turns out that the judiciary is not waging a war on Christian speech. It's other students' speech rights that may be in jeopardy after the "Bong Hits" ruling.