Tuesday, June 26, 2007

Stevens is 87

Ordinarily I make this observation in connection with the dire need to win the next Presidential election lest we see the end of Roe. And if we don't win the next election, we shall see the end of Roe.

But not today, today that observation is all I can muster to explain the quoted passage below from Stevens' otherwise incisive dissenting opinion in Morse. There are many good reasons that students should be able to unfurl a banner off school property that says "Bong Hitz 4 Jesus" but my dear John Paul, if you think this is one of them, then those crazy kids today have begun to talk past you:

To the extent the Court independently finds that“BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practi-cally refutes itself. This is a nonsense message, not advo-cacy. The Court’s feeble effort to divine its hidden mean-ing is strong evidence of that. Ante, at 7 (positing that the banner might mean, alternatively, “‘[Take] bong hits,’” “‘bong hits [are a good thing],’” or “‘[we take] bong hits’”).Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. But most importantly, it takes real imagination to read a “cryptic” message (the Court’s characterization, not mine with a slanting drug refer-ence as an incitement to drug use.)

It does not take imagination to imagine "bong hits 4 jesus" as an incitement to drug use, it takes having been born in the latter half of the 20th century.

The majority's position that students should not be able to advocate illegal activity in connection with the school is not crazy, but I think its wrong. The difficulty with this position is not the difficulty of cabining the right to suppress speech of a certain message -- the legal vs. illegal distinction seems clean enough -- it is the difficulty of cabining the zones at which speech may be suppressed at all. I suspect if we tracked our lives step by step throughout a typical day, we would find that we spend an awful lot of time in places that someone else might find "special enough" to merit a special exception to the first amendment. Work, someone else's property, public meetings, public travel infrastructure. No, sorry, without a physical threat to security, the government can engage in no speech suppression at all. I don't care what the message is.

Hat tip to the debate blog, home of a law student who claims not to see the message as obviously pro-drug use.

My suspicion is that he or she is baked.


Regrettably, the hyphens in the Stevens opinion are an artifact of the cut and paste function from the Supreme Court web-site, rather than an artifact of the writing styles prominent when Stevens learned to write.

1 comment:

slickdpdx said...

Your zone analysis is right on the mark. (If you will.)