Bong Hits 4 Jesus

If John Stuart Mill had been able to meet the eighteen-year old boy, Joseph Frederick, from Juneau, Alaska what would he say to him? During the 2002 Olympic torch procession through his town, Frederick decided to hold up a cardboard sign displaying the message, “BONG HiTS 4 JESUS”. The case Morse v. Frederick was eventually taken to Supreme Court and decided there, but what would Mill decide in the case of Frederick? The decision Mill would have to make is whether Frederick’s sign was a violation of school policy and therefore a justified suspension from his school by his principal, Deborah Morse, or, if Frederick’s first amendments rights of freedom of symbolic speech and expression were violated. Comparing the case to Mill’s third chapter of, On Liberty: Of Individuality, As One of the Elements being Well Being, would Mill support the Supreme Court’s ruling and grant Morse rights to suspension, or would he side with Frederick and agree his first amendment rights have been limited unfairly?

In his third chapter, Mill focuses on the idea that all, “Human beings should be free to form opinions, and to express their opinions without reserve.” He writes that all humans have this right to expression and opinion without the fear of oppression or violence, which parallels the rights of the first amendment in our Constitution. Mill’s interpretation of these individual freedoms represents the first amendment and therefore can be used in a comparison with it in order to analyze this case. According to Mill, the only time this right can be provoked or limited is when it causes harm or prevents others from pursuing what they want.

For the background of the case, it is a Monday morning and the students are waiting outside their school on what is considered a school sponsored field trip to watch the Olympic torch relay. Joseph Frederick did not attend school that day but is across the street on a public sidewalk holding up his “BONG HiTs 4 JESUS” sign that is caught on national television. Principal Morse tells him to take it down immediately, but Frederick refuses saying he is not in school and he is not disrupting anyone. Due to the refusal, Morse suspends him for ten days. Frederick, feeling as though his first amendment rights are violated federally and by the state, sues the school board and Morse filing a civil rights lawsuit.

Original poster displayed during torch procession

            For a quick recap, the case is taken to the United States District Court for the District of Alaska, where it is dismissed on a summary judgment based on the court case precedence of Bethel v. Fraser and Tinker v. Des Moines, two famous symbolic speech cases, that the school board did not violate Frederick’s free speech. It is taken to the Ninth Circuit court, where the District court’s decision is reversed, because it is reasoned that because Frederick was standing on public ground and not school property, his rights cannot be limited. This is largely based on the case precedence set by New Jersey v. TLO, where it was ruled that, “Students do not shed their constitutional rights at the schoolhouse gates.” After this ruling, the school board petitioned for the Supreme Court to review the case and it was accepted four years later in 2006. In a five to four decision, it was ruled that Frederick’s first amendment rights were not violated, because it occurred at a school event following the school speech doctrine, and his sign could be interpreted as promoting drug use causing a lack of safety and nuisance to the student and community.

So, the question is, would Mill agree with this Supreme Court ruling? The largest aspect is whether Frederick’s sign was a form of speech that would cause harm or prevent the opinions and speech of others, and if it really speech at all. There are two sides to this case that Mill’s chapter could be interpreted to support. There is a lot of case precedence and constitutional interpretations used by the Supreme court to decide this case, but if you are solely looking to decide the case based on the first amendment rights connecting to Mill's ideas; that freedom of speech and expression may not be limited unless causing harm or preventing others from expressing their views, what would be the side to pick?

For the majority opinion supporting Morse and the Supreme Court, the largest argument would be that Frederick’s speech was extremely offensive and caused a nuisance. It also can be argued that the sign did endanger student’s safety and caused them from expressing their own opinions. By Frederick writing and publicly displaying the expression, “bong hits”, he is promoting drug use no matter how he says it. It also can be considered offensive on the basis of religion, because it advocates illegal drug use in relation to Jesus. It is causing nuisance in school, because when referring to the senior thesis of Boston College undergraduate student, Elizabeth A. Pawlecyzk, it was reported that Morse clearly states that the sign goes against the school’s anti-drug educational mission. It is a clear nuisance, and this drug promotion by Frederick prevents students from achieving what they want in school. This is what Mill clarifies is a limit on speech, when speech impedes someone from achieving what they want. If Morse did not demand the sign be taken down and reprimand Frederick for it, it would seem as though she and the school supported drug use. Due to this, many students who are looking for a safe school that fights against the use of drugs would not be able to achieve this going to a school that allows a pro-drug banner to be publicly shown at a school event. Not only does it prevent students from achieving the school atmosphere and education they want, but prevents the school from achieving its academic and social goals as well to promote a healthy and legal lifestyle to students. In the majority opinion of the Supreme Court, the justices quoted the school superintendent who stated that the sign was, “speech or action that intrudes upon the work of the schools.” It can also be argued Frederick’s sign actually has no political meaning or opinion. So, there is no, “justifiable cause” that Mill’s writes of found in Frederick’s speech. Therefore, it is not protected under the freedom of expression and speech that Mill writes of. What does it achieve? One would not know, as it is very unclear. In a phone conference with NBC, Frederick states that, "I wasn't trying to say anything religious, anything about drugs."The poster served as a joke and an attempt to get a rise out of his vice principal and administration. According to Mill this would not be protected, because it is not making a statement nor does it contain any political value, therefore it is simply a nuisance.

For the dissenting opinion, Mill fully supports freedom of speech and opinion by those willing to express it, but to a certain extent. Frederick’s sign was considered offensive by some, particularly, Morse, because it was uncommon and bold. The decision to hold up a sign by an eighteen-year old shocks people and is not expected, therefore part of its negative reaction is due to the fact that the public does not know how to interpret or receive it. Yet, Mill’s justifies this saying, “Human nature is not a machine to be built after a model…it is desirable that people should exercise their understandings…an intelligent deviation from custom, is better than a blind and simply mechanical adhesion to it.” Frederick is doing something different and supporting a view that is although confusing, still a form of speech. One of the aspects of Mill’s idea of free speech is doing something unexpected that can enrich your life experience or knowledge. This is exactly what Frederick could say he is doing. Mill’s argues that in the modern era, or his time, society’s problem is not the “excess, but deficiency, of personal impulses and preferences.” Isn’t this exactly what Frederick’s sign is, an impulse? There is also the argument that Frederick’s sign promotes drug use, which is not allowed in school and can cause a lack of safety or harm to students. Despite the on or off school grounds argument, the key idea you must remember is that being uncomfortable does not equate to harm. They are very different. Again according to, Pawleczyk, another point to remember is the fact that what could happen versus what is happening must also be taken into consideration. Frederick cannot be suspended based on the violence or a lack of security that could come about.  It is what is currently happening, which is neither violence nor a lack of safety. It is true that Frederick’s sign may have made some students uncomfortable, but it did not cause harm to them directly nor did it limit their immediate safety. It was a sign and it is not as though Frederick had in his possession marijuana or any paraphernalia. According to Justice Stevens, Souter, and Ginsburg, in their written dissenting opinion, they state that, “There is absolutely no evidence that Frederick’s banner’s reference to drug paraphernalia willfully infringed on anyone’s rights or interfered with any of the school’s educational programs.” The last reasoning for Mill’s support is the fact that it was simply a form of speech that can be interpreted any way due to the way it’s worded. Mill writes that, “On the contrary, even opinions lose their immunity, when circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” Basically this is saying that an opinion should spur a nuisance. This can be argued for Frederick in either way, that first it was a form of expression, so a sign is necessary to display. Or second, Frederick is just using his speech freely in society, and has no point to prove meaning he holds no opinion to cause a mischievous act anyway. Overall, the public reacts negatively to Frederick’s sign because it is very outright and standoffish, but also innovative and new. Mill describes the public’s reaction saying that the general average of mankind, "have no tastes or wishes strong enough to incline them to do anything unusual, and they consequently do not understand those who have, and class all such with the wild and intemperate whom they are accustomed to look down upon.” Therefore, Frederick is prosecuted because of his attempt to have individual and unique speech, and it is violated and limited by his vice principal and the school board.

Poster now displayed in the Washington D.C. Newseum

  

 Frederick v. Morse is a tricky case, explaining why it eventually reached the Supreme Court in order to find a decision. Overall, the goal is to define if Frederick was justified in his decision to hold the sign up. Were his first amendment rights violated? Or was the suspension necessary? Mill relates to this court case and the first amendment as he argues for the protection of free speech and expression, but he also states limits of harm and nuisance.
  So, if Mill were a judge on the Supreme Court and you had to decide...do you think would Mill vote in favor of Morse and the school board, or in favor of Frederick?