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Censorship, cannabis and the Supreme Court, USA

By Hempology | June 29, 2007

Washington Post Supreme Court Reporter
June 26, 2007
Robert Barnes

Supreme Court Issues Trio of Big 5-4 Decisions
Rulings Impact Campaign Finance Reform, Bush Faith-Based Initiatives and Student Speech

Washington Post Supreme Court reporter Robert Barnes was online Tuesday, June 26 at 11 a.m. ET to discuss the flurry of rulings that came Monday as the court nears the end of its session, including new limits on student speech, lawsuit protections for the president’s faith-based initiatives and a weakening of a McCain-Feingold campaign finance law.

The transcript follows: 

Robert Barnes: Good morning, and thanks for joining our chat about the Supreme Court. A quick review of the questions already here indicate that some folks were not much impressed with the court’s decisions released yesterday — write in if you feel differently. And while I probably won’t answer questions such as “Can we impeach them?” I’ll publish some of your thoughts so you’ll know the reaction that’s out there. Let’s get started.


Silver Spring, Md.: I’m a little confused by the court’s ruling in the “Bong Hits 4 Jesus” ruling. As I remember it, the student in question is (and was at the time) an adult, was not on school property, and did not have any illegal material on or around his person. Yet the court stated that schools do not have to tolerate speech advocating illegal drug use. So the court has now ruled that a school’s right to restrict a student’s free speech does not end a the school house door (or edge of the school property). Clearly the ruling would have been different if the banner had been for or against abortion or stem cell research (or would it?). It is difficult to see where this is anything other than the court ruling that whether free speech rights exist depends on the content of that speech.

Robert Barnes: The court found that the student, Joseph Frederick, was at a school-sponsored event, because the entire school had been released to watch a parade featuring the Olympic torch. It didn’t matter whether he was on school grounds or not (think of it as a field trip). The lower courts found this to be the case as well. And the majority in the case — although it is a splintered one — signed on to Roberts’ opinion that schools do not have to tolerate speech that advocates illegal drug use.


Arlington, Va.: So, I’m a little confused. In the political ads case, Roberts says that in First Amendment cases the “tie” goes to the speaker not he censor. But in the school speech case he sides with the censor and not the “speaker.” Isn’t there an awfully big amount of legal hypocrisy here?

Robert Barnes: I think what he was saying is that there are clearly different rules for students. And Roberts seemed to be making the case in the McCain-Feingold decision that the First Amendment protects core political speech. But you are not the only one who found the two decisions contradictory.


Floris, Va.: Supreme Court Chief Justice wrote yesterday that the “Bong Hits 4 Jesus” case promoted “illegal drug use.” Okay, but there is no other way to interpret the sign as either a joke or an endorsement to consume marijuana. Here’s the rub: This took place in Alaska and that state largely has decriminalized its cannabis laws. It is legal in Alaska to have one ounce or less of marijuana in your possession — it’s just illegal to grow or distribute it. Did Justice Roberts cite or acknowledge the Alaska law in the decision?

Robert Barnes: Sort of, I guess. He said in response to the dissent in the case that “this is plainly not a case about political debate over the criminalization of drug use or possession,” which is a debate that was ongoing in Alaska at the time. Although they signed on to Roberts’ opinion, Justices Samuel Alito and Anthony Kenney said they joined “with the understanding that … 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.”


Philadelphia: According to the Supreme Court, a student’s right to free speech is not protected but a corporation’s right to free speech basically is, right? Please explain. And, do you think the student’s right to free speech would have been protected if his banner read “Bong Hits 4 Allah”?

Robert Barnes: Given that the chief justice wrote that Frederick’s “cryptic” banner was neither about religion or politics, I wouldn’t think so.


Washington: Is stare decisis dead? Not to be too cynical about it, but why don’t the justices save everyone some time and overtly admit they base their decisions on their own political philosophy, rather than continuing the legalistic charade that they are interpreting the law?

Robert Barnes: I’ll try to answer at least the first part of your question. The justices on the losing side of these cases certainly think the majority is ignoring the court’s past judgments, as Justice Souter wrote in his dissent in the McCain-Feingold case. But the majority so far has been able to write opinions without overtly overturning past decisions. Justices Antonin Scalia and Clarence Thomas have been more outspoken in their desire to overturn precedent, as they demonstrated yesterday. And Alito said in the campaign finance decision that he is ready to reexamine the court’s holding that part of the act is constitutional if the new test proposed by the chief justice is not found workable.


Boston: Which transcripts would have been more interesting to you if you were a senator voting on the last two Supreme Court nominees: Their public testimony in front of the Judiciary Committee, or their interviews in Cheney’s office as part of the winnowing process (Gellman article)? How healthy are the four justices who have been in the non-conservative minority recently? Another “strict constructionist” in the next year or so (if this administration had to fill another spot on the court) would entrench this conservative court for the next 20-30 years. Taking on the Supreme Court Case (Post, June 26)

Robert Barnes: I think most would agree that we learn at least as much about the senators at those hearings as we do about the nominees. As for the second part of your question, everyone certainly appears to be healthy, but I’m no doctor. (Or lawyer, for that matter.) The four you speak of, however, are not young — Stevens is 87, Ginsburg is 74, Souter is 67 and Breyer is 68 if my math is correct.


Silver Spring, Md.: I was very disappointed to see that the student free speech case did not make the headlines in today’s paper. I think this case is as or more important than the campaign advertising case. To quote today’s paper (emphasis added), “Justice John Paul Stevens dissented, arguing that Frederick had raised a ‘nonsense banner,’ which advocated nothing, legal or illegal, and that the court’s opinion could be read to permit broad censorship.

” ‘The court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use,’ Stevens wrote.”

Why are we treating our high school students, expressing opinions outside of school, as less than citizens? Why are we discouraging the debate of our laws? I’m appalled at this decision.

Robert Barnes: I think you might mean that you thought the story should be on the front page. Maybe — although we don’t agree on everything, we can all conclude Supreme Court coverage deserves better play. I’m with you on that.


Washington: There have been quite a few 5-4 Supreme Court decisions recently. Has the number of 5-4 decisions been unusually large recently, or has it always been thus? And is there a risk that a lot of 5-4 decisions could undermine public confidence in the court?

Robert Barnes: There are almost double the number of 5-4 decisions this year as opposed to last, although that’s probably not the perfect comparison. Alito was only on the court after January, and some think there was a bit of a honeymoon for the new chief justice. But I don’t think there are any doubts there is a substantial split on the court about social issues — and those are coming to the forefront, especially at the end of this term. As Scalia said when asked about Roberts goal of finding more consensus and agreement on the court, “lots of luck.”


Annandale, Va.: Re: “Is stare decisis dead? Not to be too cynical about it, but why don’t the justices save everyone some time and overtly admit they base their decisions on their own political philosophy” — such thinking would have left in place Dred Scott and Plessy v. Ferguson. That justices bring a political philosophy to their decision making shouldn’t be a surprise — in fact, it should be expected from both left and right.

Robert Barnes: You sum up that side of the argument well, Annandale. Presidents try to appoint nominees who agree with their views, and Clinton (Ginsburg and Breyer) and George W. Bush (Roberts and Alito) must be pleased so far.


Washington: Thanks very much for doing this chat. Why are everyone’s panties all tied up in knots about yesterday’s rulings? While I am not a constitutional scholar or attorney, I am a reasonable, educated citizen who has more than a passing knowledge of our Republic’s history and who reads “The New Republic,” “The National Review” and “The Weekly Standard.”

While I’ve been out of high school for 34 years now, my youngest is a rising junior, and I thoroughly agree with the “Bong Hits 4 Jesus” decision; to paraphrase a famous jurist, I may not be able to define political speech, or differentiate it from sophomoric speech — but I sure know it when I see it, and this wasn’t political speech.

I don’t see the faith-based initiatives decision going anywhere near using tax dollars to support a particular creed (e.g., the Anglican Church), and McCain-Feingold is clearly restraint of free speech. I like and respect John McCain very much, and tend to agree with him on this issue, but George Will is right — rich individuals and corporations have as much right to express political viewpoints as the poor do. And I agree with Sen. Lieberman that “freedom of Religion doesn’t mean freedom from religion.”

Frankly, this layman is happy to see this court try and put the onus back on the legislative branch to come up with laws that work and not rely on a “progressive” and unelected judiciary.

Robert Barnes: Thanks for your view. Here’s another:


San Francisco: John Roberts’ passion for a united Court and Sam Alito’s respect for stare decisis seem just words uttered to achieve confirmation. At what point do untruths uttered at Senate hearings become grounds for impeachment, especially given the illegitimacy of the president who nominated these clowns?

Robert Barnes: Lots of disagreement about this court.


Arlington, Va.: I’m too young, but were college students ever advocating avoiding the draft during the Vietnam war (on campus, or at campus events?). This ruling would allow the schools to squelch that type of thing I imagine?

Robert Barnes: The court’s most famous case in this area is Tinker v. Des Moines Independent Community School District, in which the court upheld the right of students to wear black arm bands to school to protest the Vietnam War. Roberts tried to make clear in his opinion that he was not challenging Tinker’s holding that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Thomas, by the way, filed an opinion saying that the Tinker standard “is without basis in the Constitution.”


Southeast Washington: How can this court expect to be taken seriously if they determine that the free speech rights of the corporation supercede those of a citizen — a non-voting, non-donating citizen, but a citizen nonetheless?

Robert Barnes: Roberts tried to explain what you call his inconsistency in a footnote, saying student First Amendment rights “are applied in light of the special characteristics of the school environment” and that there is “no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life,” the campaign finance case.


Silver Spring, Md.: Lots of coverage of Supreme Court decisions, except the decision to uphold EPA’s assertion that delegation of Clean Water Act NPDES authority to States supercedes the Endangered Species Act Section 7 Consultation Requirements because the delegation isn’t “discretionary.” The synopsis on the Web today (I’m wading through the Slip Opinion now) shows another really narrow view of the world on an environmental matter. What’s the damage here? Will this become another Alcee decision? Business Prevails in Environmental Case (AP, June 25)

Robert Barnes: Yes, at the end of the term decisions come in bunches and not all get the attention they probably deserve. That was an important decision in the development community, but it is hard to know how broadly its holdings can be applied.


Washington: The poster from San Francisco highlights the problem with American politics today that is reflected in the court. He doesn’t like the decisions, so he questions the legitimacy of the court. Plus, does he think Roberts should compromise his interpretation of the law to make him and others happy? I am glad to see a judiciary that is putting the onus on Congress and not relying on interpretations from the bench.

Robert Barnes: We’ll let this, and an opposing view I’ll post next, serve as the ending to our discussion. The court will be back on Thursday, most likely to announce its decision in one of the biggest issues of the term — whether public schools may use racial classifications in student assignments in a desire to achieve diverse student bodies. Thanks so much for reading The Post and joining the discussion.

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