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Thoughts About Orin's Thoughts on Morse v. Frederick:

I much appreciate Orin's response to my Morse v. Frederick post. Here is what strikes me as the heart of his claim, responding to point 2 of my post:

[Under Alito's approach, t]he speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic....

Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

The trouble, it seems to me, is that under Justice Alito's test as Orin (quite plausibly) reads it, the rule is not that the speech is unprotected if "a plausible interpretation" of the speech is "break [the rule] just for the thrill of opposing authority." Rather, the speech is unprotected only if this is the only plausible interpretation — if the speech "can't reasonably be read as commenting about a political or social topic."

So under Orin's reading, "BONG HiTS 4 JESUS" should be protected so long as it can reasonably be read as commenting about whether marijuana use is good (a "social topic") or whether marijuana criminalization is good (a "political ... topic"). And it seems to me that it can be so reasonably read (even if it can reasonably be read as just a prank).

It's true that sometimes if you urge someone to break the rules, or praise conduct that breaks the rules, that can't reasonably be read as an implicit argument that the rules are bad. "Give your classmates wedgies" is probably not a protest against battery law, or an assertion that Nietzschean supermen shouldn't be bound by such law — perhaps one can say that it must either be a joke or a call to violate a rule without any commentary on the rule's soundness (though I'm not completely positive even about that). I take it this, though, that this is largely because there's no reasonable debate about whether wedgies are good, or should be allowed at school. Everyone agrees that battery should be against the rules; praise of such battery is thus unlikely to be an endorsement of the battery, or a claim that the anti-battery rules are bad.

But it seems to me that "[take] bong hits," "bong hits [are a good thing]," and "[we take] bong hits" — the three reasonable interpretations of the sign set forth by the majority, which Justice Alito joined and didn't try to limit on this score — aren't within this category. There is a lot of disagreement about whether marijuana use is good, and about whether marijuana law is bad. It seems to me that these three interpretations of the slogan (all treated as reasonable interpretations by the majority) can therefore be read as commenting on the soundness and wisdom of marijuana use, and of marijuana law. It thus seems to me that we can't say the poster "can't reasonably be read as commenting about a political or social topic." So if Justice Alito's test is read as Orin suggests, the test would indeed be internally consistent — but it would be inconsistent with Justice Alito's conclusion that the speech here is unprotected.

Matt Tievsky (mail):
Didn't the kid concede the message was a stunt, with no underlying political message? Could that have been determinative, to Alito?
6.26.2007 11:26pm
Mike Keenan:
"There is a lot of disagreement about whether marijuana use is good, and about whether marijuana law is bad"

Huh? Really?
6.27.2007 12:44am
Randy R. (mail):
Yes, really. No one has died of an overdose of pot, unlike alcohol or other drugs. Many people claim that medical marijuana should be allowed, in which case the current law is bad.

And why would people smoke pot unless they thought it was good?
6.27.2007 12:50am
Eugene Volokh (www):
Matt Tievsky: I don't think so; as I wrote in my original post, Justice Alito joined the majority opinion, which treated the slogan as an expression of support for illegal drug use, not just a message-less stunt.
6.27.2007 1:02am
malviniaz (mail):
Mike, according to Zogby, there is a significant percentage of Americans that want weed legalized. Indeed, states like California and Oregon have effectively* legalized it. At the very least, 45% of Americans want the legalization of weed to be a state issue, not a federal one.

*All states define simple possession as the weight of the herb and not the actual quantity of psychoactive substance. Since marijuana has, without fail, increased in potency every year since Nixon was president, every marijuana law on the books has become effectively weaker. In California and Oregon, the result has now approached complete legalization.
6.27.2007 1:04am
Fub:
malviniaz wrote at 6.27.2007 12:04am:
*All states define simple possession as the weight of the herb and not the actual quantity of psychoactive substance. Since marijuana has, without fail, increased in potency every year since Nixon was president, every marijuana law on the books has become effectively weaker. In California and Oregon, the result has now approached complete legalization.
That's news to me. Having defended California cases not terribly long ago, and knowing colleagues who are still defending cases, in my experience the rumors of California's effectively complete cannabis legalization are greatly exaggerated.

As to the superpotency myth, it's a damnable, palpable lie routinely trotted out by ONDCP at taxpayer expense in any state where a legislature or a voter initiative addresses relaxing marijuana laws.
6.27.2007 1:53am
michael (mail) (www):
The trouble, it seems to me, is that under Justice Alito's test as Orin (quite plausibly) reads it, the rule is not that the speech is unprotected if "a plausible interpretation" of the speech is "break [the rule] just for the thrill of opposing authority." Rather, the speech is unprotected only if this is the only plausible interpretation — if the speech "can't reasonably be read as commenting about a political or social topic."

Given the context that a student at that school unfurled the banner at an event the school as a school was participating in, it seems that it invited students to see as an equilibrium position having the thrill of opposing authority, advocate and smoke dope, and, possibly even, enjoying a relationship to Jesus in the ride of their emotions. Alito's position, in building on the others, might seem to be 'the first 2 strikes and your out,' not just the second strike. I don't see as appropriate the agonized concern with this ruling that if the student were asked to right an essay on marijuana and took a position like Mike Keenan (above) noted the Professor as taking this ruling suggests sanction would be appropriately forthcoming. In broader context, I imagine the Justices are cognizant of a terrible public policy dilemma. This is based on the realization that demand for drugs has more than reached a tipping point where there will be supply. To win the war on drugs means that demand must be reduced, but the only way to do that would seem to be to allow infringements in search and seizure (and here in, 'it would be nice,' First Amendment demonstrations) which are, and you know better than I the appropriate adjective here, juridically 'difficult.'
6.27.2007 2:05am
Eugene Volokh (www):
I'm not sure that Mike Keenan's "Huh? Really?" is serious -- I had taken it as a sort of "Duh!," since the debate about whether marijuana is really that dangerous, and whether marijuana bans are unsound, is so notorious. But in case it's serious, I should add that in Alaska (the very state in which the speech took place), the Supreme Court has held that possession of small quantities of marijuana is protected against state-law restriction by the state constitution's right to privacy..

That is hardly necessary for there to be evidence that there's a debate on the propriety of marijuana bans. But it is sufficient, I think.
6.27.2007 8:54am
Mike Keenan:
I support decriminalizing use of marijuana, but not because I think its use is good. Freedom is good.

"And why would people smoke pot unless they thought it was good?"

I have no idea. I am still teaching my kids not to use it, no matter how good it is for them.
6.27.2007 9:09am
Josh Barro:
This is why we needed Douglas Ginsburg on the court.
6.27.2007 10:45am
Mahlon:
This discussion seems beg a point I have often considered. 1) Because of the instant analysis these decisions now receive, is it possible or wise for the Court (especially Justice Alito, in this case) to issue revised opinions? I certainly see the dangers of such a practice, but I wonder whether Justice Alito, or anyone on the Court, saw the differing interpretations of his opinion. Eugene and Orin provide thoughtful comments which raise legitimate issues. Would it not be better if Alito's arguably controlling opinion were less susceptible to debate?

Again, the dangers of such a practice are obvious, but given that the Court would always make the ultimate decision on revision, would it not be wise?
6.27.2007 11:41am
abb3w:
OK, I'm just a computer geek, but isn't the question of the appropriate limits of free speech itself an inherently political topic? And as such, shouldn't a "Bong hits for Jesus" banner be nonsense just as protected as the classic "Abort the Gay Feminist Rasta Whales with a Nuclear Handgun for Comrade Jesus" button on my button jacket?
6.27.2007 11:43am
malviniaz (mail):
abb3w - Alito decided that BH4J had no discernible political message.


[Alito joins the opinion insofar] it 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. (internal quotes omitted, my emphasis).
6.27.2007 2:41pm
Elliot123 (mail):
It would appear the court did not follow the reasoning of its own opinion in deciding the case. Under Alito's doctrine, any and all political or social messages are protected. The kid's message has both a social and political component. Hence, the court disregarded Alito's doctrine. It's not the first time smart people have shot themselves in the foot trying to justify what they have done.
6.27.2007 4:49pm