0:00:00.4 S?: We'll hear argument first today in case 06-278, Morse v. Frederick.

[music]

0:00:07.8 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode, Peter, Rhiannon and Michael are talking about the free speech rights of students. In 2007, the Court ruled in Morse v. Frederick that a high school principal had the right to suspend a student for holding a provocative sign during a school-sponsored outing.

0:00:27.4 S?: As the symbolic torch was carried through Juneau, Alaska on its way to the 2002 Olympics, Douglas student Joe Frederick unfurled this banner: "Bong Hits 4 Jesus."

0:00:39.3 Leon: The case created a precedent that allows schools to punish students for speech, even when they are not disrupting academic activities. The case also says a lot about whose free speech the Supreme Court really cares about.

0:00:51.3 S?: I find it absurdly funny. I was not promoting drugs. I assumed most people would take it as a joke.

0:00:56.4 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:05.2 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have like a mighty river wound their way over the great rock of our liberty, reducing it over many years to a canyon of despair. I am Peter. I'm here with Michael.

0:01:19.8 Michael: Hey, everybody.

0:01:21.5 Peter: And Rhiannon.

0:01:23.5 Rhiannon: Hi.

0:01:24.2 Peter: Alright, this is our first episode of the Joseph Robinette Biden presidency.

0:01:29.3 Rhiannon: Robinette.

0:01:32.3 Michael: Robinette.

0:01:33.1 Rhiannon: You gotta roll that R.

0:01:33.4 Peter: Do you?

0:01:33.8 Rhiannon: It's a rolled R, for sure.

0:01:35.5 Peter: Yeah, it's been an interesting few weeks. Inauguration went off without a hitch. I guess from my perspective, it's time for Stephen Breyer to die or retire.

0:01:47.7 Michael: That's right.

0:01:48.7 Rhiannon: That's what Lady Gaga meant when she was singing the national anthem and she pointed at the flag... The flag was still there. What that means is Stephen Breyer, retire, you fucking bitch.

0:01:48.8 S6: That's right.

0:01:48.2 S7: That's what Lady Gaga meant when she was singing the national anthem and she pointed at the flag. The flag was still there. What that means is, Stephen Breyer, retire, you fucking bitch.

0:01:58.8 Michael: Yeah, if you read between the lines.

0:02:00.6 Rhiannon: Right.

0:02:00.7 Peter: Right. Stephen Breyer, yeah, he should be retiring. It would be a good time. Remember the opening scene of Prometheus?

0:02:09.4 Michael: Yes.

0:02:10.3 Peter: Where the alien dude drinks the concoction and then his DNA breaks down and he dies and dissolves into the waterfall?

0:02:16.2 Michael: Yes.

0:02:16.3 Peter: If he could do that, that would be cool too.

0:02:17.6 Rhiannon: Sure. I would accept, yeah.

0:02:18.7 Peter: It's... Sacrifice for the greater good, was the theme of that scene, I think.

0:02:22.9 Michael: That's right.

0:02:23.3 Peter: I don't know. I didn't really understand Prometheus.

0:02:26.2 Michael: The movie doesn't make any sense. But I do think like, look, they just elevated Merrick Garland or pulled him off the Court, and so they'll probably put Ketanji Brown Jackson in his spot, and then in June, July, Breyer retires at the end of the term, and they elevate Ketanji Brown Jackson to the Supreme Court.

0:02:49.9 Peter: Yeah.

0:02:51.8 Michael: Inshallah. Inshallah. Please, let's not...

0:02:55.9 Peter: Yeah, yeah. I don't think that he should have stepped down by now, but I would like to start the public campaign to pressure him right now.

0:03:02.6 Michael: Absolutely.

0:03:03.2 Rhiannon: Absolutely. Yeah.

0:03:04.0 Michael: Before the next term.

0:03:05.7 Rhiannon: Yeah, and that's what J. Lo was doing when she sang, "Let's get loud" in the song, she was talking about making sure that our voices are heard, in particular, Stephen Breyer, retire, bitch.

0:03:18.1 Peter: Yeah.

0:03:18.2 Rhiannon: That's what she's talking about.

0:03:18.3 Peter: See, this is the difference between us. I listen to those songs, but you really hear them.

0:03:22.3 Rhiannon: Yeah, that's right.

0:03:24.5 Peter: So, today's case is Morse v. Frederick. This is a case about free speech. We've done a few episodes about the Court's protection of corporate speech, but this is a different kind of case. This is about the Court's lack of protection for the speech of individuals. This case has a fun set of facts. In 2002, the Olympic torch relay was running through Juneau, Alaska, right by the local Juneau Douglas High School. All of the students and teachers were excused from class to go outside and watch. Joseph Frederick, a high school student, gathered with some friends across the street from the school, and when the torch came by and the TV cameras were on, they unfurled a banner that said "Bong Hits 4 Jesus." That's the number four, by the way. Bong Hits 4 Jesus.

0:04:09.6 Rhiannon: Yes, aha, note the stylizing.

0:04:11.6 Peter: The principal stormed across the street to seize the banner from them, and then Frederick was suspended from school, and then he sued saying that unfurling a banner that says "Bong Hits 4 Jesus" across from the school during the Olympic torch relay was his right as an American under the First Amendment's protection of free speech.

0:04:33.8 Rhiannon: Tell 'em, Joseph.

0:04:35.3 Michael: He's fucking correct.

0:04:40.0 Peter: And the Supreme Court a few years later in 2007, in a 5-4 decision, disagrees, holding that the student's banner was not protected by the First Amendment.

0:04:48.0 Rhiannon: Right.

0:04:49.6 Peter: So, yeah, this case touches on the conservative vision of social hierarchy, and it also touches on a conservative tendency that we haven't really discussed too much on this podcast, and that's just good old-fashioned puritanical morality. It's about the free speech rights of students, but in a larger sense it's about what you might call the outskirts of free speech, how does the law treat speech that it views as unimportant? How does it treat speech that comes from people who it views as unimportant? So Rhi, if you can give us a little bit of color here, a little more background?

0:05:22.5 Rhiannon: Sure, sure. So I think the important facts of the case, are, Peter, you just said them, right? But I have a couple of thoughts that I think are important up top. So, one is, important for listeners, I think, to place themselves in January 2002, in Juneau, Alaska. And I just would like to pose the question, what else are you supposed to do to entertain yourself? You fucking live in Alaska. This is a dream senior prank, and it is a classic example, I think, of pre-internet trolling. So Joseph Frederick, wherever you are today, I'm sure that you're an extremely powerful online poster, and for that I salute you.

0:06:08.3 Rhiannon: Like Peter said, classes at Juneau Douglas High School had been dismissed that day and students were to attend the parade, the Olympic torch relay, and that event was considered a school-sponsored event. So as punishment for displaying the banner that said Bong Hits 4 Jesus, the school principal, Deborah Morse, suspended Frederick for 10 days, and officially the school's reason was that Frederick had violated the school policy, which forbade advocacy for the use of illegal drugs. And if I can just maybe take the opportunity to editorialize a bit here, setting aside any legal argument about the permissibility or prohibition on this kind of speech, getting suspended from school for 10 days for doing this is wild to me.

0:06:55.4 Rhiannon: That's crazy punitive. That's a harsh punishment. But it is helpful, I think, to illustrate the sort of social moral panics that were prevalent at this time, because you see what it is that squares were getting their panties in a bunch over, and it helps to explain why the suspension was so heavy and then the way a fucking dork like John Roberts is talking about the apparent horror of a poster that says Bong Hits 4 Jesus. So again, this happened in 2002, and throughout the '90s, in particular, American middle class folks had been stoked into terror about so-called super predators. Experts were warning about an explosion of violent juvenile crime committed by black and brown youth, like media portrayals of this phenomenon were calling young people animals and savages, and people were often ascribing drug use or drug-related motives to the incidence of crime among young people.

0:07:55.4 Rhiannon: Another thing, people were freaking out about Dungeons and Dragons in the '80s and '90s, Christian groups especially were saying that the game promoted Satanism and witchcraft, murder, suicide among young people, and of course, you have the background since the '70s, really, of the war on drugs, and then in the '80s Nancy Reagan's Just Say No campaign, those ideas had sort of fully permeated public consciousness to the point that people believed largely anecdotal and hyperbolic depictions of drug use.

0:08:29.4 Rhiannon: We've previously discussed at length how the Supreme Court has unquestionably employed pseudoscience and propaganda in its opinions, and I think noting what the prominent like folk devils were at this time in American society is helpful when you look at this case and pick apart what kind of rhetorical devices dusty ass John Roberts is using.

0:08:51.5 Peter: Another component of the '90s moral panic in this is there was a lot of concern about slogans on t-shirts and stuff that children were wear to school, like if you guys remember the No Fear brand of shirts.

0:09:05.8 Rhiannon: Absolutely, yes.

0:09:06.9 Michael: I had a sweet note here.

0:09:11.1 Peter: Yeah, so some kid shows up to school with like a No Fear shirt and it says "It's not the size of the dog in the fight, it's the size of the fight in the dog." And I was eight years old, looking at that like, holy shit, that is a bad ass, dude.

0:09:25.4 Rhiannon: I will never forget this. My older cousin, this would have been early 2000s, for sure. Limp Bizkit was a popular band, and my cousin got a shirt and wore it to school. The shirt said "I come to school for the nookie." This was very, very scandalous.

0:09:46.3 Michael: Oh, my God.

0:09:48.3 Peter: The Simpsons made fun of this in what must have been the mid-90s when Bart wore a shirt that said "down with homework" and it incited an anti-homework riot. And there was this idea that if children are exposed to these sorts of slogans, it will slowly unravel the social fabric that binds students and it will be pure chaos. You will be unable to control them. So that is important background, I think.

0:10:15.7 Michael: Before we continue, did you guys do any pranks like Bong Hits 4 Jesus or anything like that?

0:10:19.3 Rhiannon: Oh, God, no, I was way too good of a student and kid.

0:10:23.3 Peter: I was not a good student, I was an unruly student, for sure, but we didn't do anything on this scale, I don't think. No, I just dealt drugs.

[laughter]

0:10:36.2 Michael: We did, it's not as overt, but we had these big senior pictures, one like everybody just sitting in the bleachers and one everybody being crazy, you know, whatever. And for the crazy one, some of my friends unfurled a banner that said "Number one stunner," which was the name of the three foot bong that was very popular and passed around at all the parties. So it was more of an inside jokes, but everybody in the class itself knew exactly what that was.

0:11:09.7 Rhiannon: Being a kid is cool.

0:11:12.5 Peter: So let's talk a little bit about the law here. This is a free speech case, First Amendment free speech, and more specifically, this is about student free speech. So as you probably know, the First Amendment prevents the government from unduly abridging your speech. And so at some point, someone said, well, hold on. Doesn't that mean that public schools can't infringe upon the speech of their students? And there's sort of a tension there, right, like the First Amendment says that you have the right to free speech, but public schools also have a need and a responsibility to regulate the student conduct to some degree.

0:11:42.8 Peter: So it was for a long time unclear exactly how much the First Amendment applied in the classroom. And in 1969, in a case called Tinker v. Des Moines Independent Community School District, the Court said that actually, yeah, students do have some free speech rights as long as their speech does not cause a "substantial disruption" to schooling. And in that case, students who wore black arm bands to protest the Vietnam War had been disciplined and then they said that that was unconstitutional, and the Supreme Court agreed.

0:12:13.0 Peter: So that's the standard that the Supreme Court is applying from that point onward: Students are allowed to exercise their free speech as long as it is not "substantially disrupting" the school environment. And then in the '80s, there was a case called Bethel School District number 403 v. Fraser, where a student gave a student body campaign speech that was almost entirely a lengthy and fairly obvious sexual metaphor, and the Supreme Court there said, okay, well, it's not disruptive, but it's too sexually vulgar. The Constitution does not protect this level of horniness.

0:12:49.5 Rhiannon: You can't keep saying how long and hard you're gonna work for the student body.

0:12:54.5 Peter: Right, and that is basically what the speech was. There were other student free speech cases here and there, but this is the basic law that you're dealing with: Students in public schools do have free speech rights, but it can't be too disruptive to the classroom and apparently it cannot be too sexually vulgar. So let's talk about this case. Is holding up a banner that says Bong Hits 4 Jesus across from the school during the Olympic torch race too disruptive to be protected speech, or is it in fact exactly what our countrymen died for on the shores of Normandy?

0:13:24.8 Michael: That's right, Peter. The latter.

0:13:29.2 Peter: In a 5-4 opinion written by Chief Justice John Roberts, the Court says that this is not protected free speech. So the first question addressed by the opinion is whether Frederick was at school at all. Frederick says, hey, look, I was across the street from the school. He hadn't actually gone to school that day yet, he went straight to the place across the street, so he was saying I wasn't really at school. And that's important because, of course, students have fewer free speech protections when they're at school. So Robert says, look, if you're at a school event among students, you're at school, like the details don't matter that much.

0:14:04.8 Peter: And frankly, I tend to agree, although I think Roberts is over-simplifying it, it wasn't really a school event, it was an independent event that the school was attending. I do tend to agree that it's splitting hairs too much to say that he wasn't at school. So in the opinion, so far so good, but the next section is where Roberts really starts to go off of the rails. Again, the principal claimed to have disciplined Frederick because she believed him to be advocating illegal drug use. So there's an initial question of whether that's a reasonable interpretation of the banner. The banner says Bong Hits 4 Jesus. The kid says he saw it on a snowboard sticker and thought it was funny, and he wanted to get on TV. It's an on its face absurd, intentionally silly phrase.

0:14:49.8 Peter: So is it advocating illegal drug use? Roberts engages in an extremely funny textual analysis where he tries to break down exactly what it means, and he's taking the term bong hits and then trying to add language that it might be implying. And he's like, well, it could mean, take bong hits or bong hits are a good thing. Roberts concludes by saying that this is, quote, "a pro-drug banner." Now, I'll tell you one interesting thing, which is that when trying to break down what the banner means, Roberts never mentions the 4 Jesus part.

0:15:30.8 Peter: In fact, not once in his opinion, aside from when he initially describes the banner, does Roberts mention the 4 Jesus at all, and that's probably because if you read the whole phrase, it starts to sound a lot less like advocating for drugs and a lot more like a purposefully absurdist message that happens to involve drugs. No one actually thinks that this kid is advocating that one should take bong hits to honor our Lord Jesus Christ. And by the way, if he was, that would probably be protected religious speech, which is even more constitutional.

0:16:04.9 Peter: Justice Stevens writes the dissent and he says, "The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible."

0:16:18.5 Rhiannon: Got his ass. I love that so much.

0:16:22.4 Michael: So good.

0:16:22.4 Peter: I want to point out that I don't think that this is like super open and shut, there's a case to be made that this is in some abstract, vague way promoting smoking weed, but I do think that Robert's evasion of the actual content of the banner is telling, because he obviously doesn't want to address the nuance here.

0:16:42.4 Rhiannon: Exactly, totally.

0:16:43.1 Michael: Right. And related to that, one point to hit, I think, is that the concern driving this case, why make this a cause, is actually that just like religious Christians are simply offended by seeing Jesus's name taken in vain, and very provocatively so. And they're just trying to impose that on everyone else, it's that evangelical sort of dominance, cultural dominance, but that's not a basis for regulating speech, the fact that some Christian people are offended, and so the Court has to dodge that because if they start talking about the 4 Jesus part, that sort of seeps in. And look, you know, this could be read as a sincere message about love and community, supposed values evinced by Jesus, let's all smoke the peace pipe together. Is peace pipe problematic?

0:17:34.3 Michael: If it is, to our [0:17:36.3] ____ listeners, I apologize.

0:17:37.9 Peter: This is literally the second time on the podcast we've said it, so I hope not.

0:17:44.9 Michael: But look, pot in America has been associated with pacifism for decades, right, back to the Vietnam War at the very least. And this is right in the middle of... The war in Afghanistan is a few months old, there's a lot of talk of other war in the air, right, like the Axis of Evil speech is five days after he does this, so I don't think that's a crazy read on it. Bong hits instead of bombs for Jesus. Because that was the selling of the Iraq War and Afghanistan War, people were talking about it explicitly as Christianity versus the militant Islam, the inherently violent Islam.

0:18:23.0 Michael: So yeah, at the very least, it could be read... If you're gonna do these textual analyses like Roberts does, it could be read as a core political speech, a core religious speech. But they don't want to do that. They just want to skip it so that they can focus on the mention of drugs.

0:18:39.2 Peter: Yeah, exactly. So turning back to the opinion, now we get to sort of the heart of the matter. Can the school, under the First Amendment, discipline Frederick for advocating the use of illegal drugs? And Roberts says, "Of course you can, yeah." And this is part of why Roberts evading the nuance of the banner is so important, because it's a lot easier to say the school can discipline him for promoting illegal drug use than it is to say the school can discipline him for holding a silly banner that maybe could be interpreted by some people as promoting smoking marijuana.

0:19:12.0 Rhiannon: Yeah. And Roberts goes on this really lengthy discussion, it's straight out of 1985, about the dangers of drug use, so brace yourselves for the following horrifying statistics. He says, "About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Nearly one in four 12th graders has used an illicit drug in the past month." Gasp for emphasis. This is where it's worth pointing out, I think, that Roberts only ever talks about illegal drugs like categorically, but of course, like any functioning member of society in 2007 knew that marijuana is a uniquely safe drug, and it's not like all other drugs. Not to mention that there's zero reason to believe that a banner that says Bong Hits 4 Jesus would have any impact at all on drug use at this school. All this is, is puritanical, pearl-clutching bullshit.

0:20:17.4 Peter: Absolutely.

0:20:18.3 Michael: And Rhi said this is straight out of 1985, but if you ask me, the government telling you what you can and can't say is straight out of 1984. Boom.

0:20:32.1 Peter: Unbelievable.

0:20:34.2 Rhiannon: Got 'em, Orwell.

0:20:39.8 Peter: I'd like to take a step back here and talk about free speech under the First Amendment. The law looks at different types of speech restrictions differently. There are what we call time, place and manner restrictions, which restrict when and where speech can occur, and those are given a lot of leeway by the courts. So the government can say, "Okay, you can protest, but you need permits, and you can't do it at 2 AM and wake everyone up," right? It's mostly logistical. And what the courts are saying is, "Look, you can restrict speech as long as you are allowing it to happen in some way, shape or form."

0:21:13.4 Peter: But then there are content restrictions, which are restrictions on the type of speech you're allowed to make. And those restrictions are very rarely upheld, for an obvious reason. The core of free speech as a concept is that you can say what you'd like to say. So for the government to say, "Well, no, no, no, you can't say that," that strikes at the very heart of the ideal. And that's what we're talking about here. The school isn't saying you can't hold a banner up or you can't hold a banner up over there, they're saying, you can't hold a banner up if it says that.

0:21:44.8 Rhiannon: Right, exactly. And I think to let the government, even a school, control what you say, the content of your speech, that's a dangerous path to go down. Like the idea that this speech is harmful is really abstract, it's certainly not violent, so it can't be said to be promoting violence, it could maybe be said that there's this distant chance that the message could cause someone to contemplate smoking one of the least harmful illegal drugs on the planet. But is that the kind of speech you want the government to be able to regulate? That doesn't make sense.

0:22:20.8 Michael: Yeah.

0:22:20.8 Peter: There's this point that's sort of implicitly made by the majority in the concurrences here. They're saying, "Look, in Tinker, that case from the '60s, those kids were protesting the Vietnam War. That's like important, heady stuff. And this banner, this is just not important." And that's sort of a big part of the opinion here. And this stands out to me for a very simple reason, which is one of the primary purposes of free speech is that it's not the prerogative of the government to decide what is or what is not important, and that includes the Supreme Court. And it might be worth noting here that as absurd as the Bong hits 4 Jesus banner is, if it can be read by the majority to be promoting marijuana use, it can just as easily be read as promoting marijuana legalization, and that would be an unequivocally political statement that the government would not be able to suppress.

0:23:06.9 Rhiannon: Totally.

0:23:08.0 Peter: This might seem like too much of a reach, but I want to talk about it for a second. When you see people who have marijuana leaf t-shirts or stickers or whatever, what are they actually saying? Are they signaling that they like weed? Yeah, of course, to a degree, that's obviously true, but a lot of people like cocaine and heroin, so why don't you see themed paraphernalia for them?

0:23:27.3 Rhiannon: Right.

0:23:29.1 Peter: Right? I think the big reason is simple, people who put weed leaves on their snowboards and whatever, aren't just saying they like weed, they're making a statement that they believe that it's okay, that they believe that they should be able to do it, and that they should be able to announce that they do it and not take shit for that. It's in many cases an implicit statement that our laws concerning marijuana should change, or that our social attitudes concerning marijuana should change. Is it purposefully fun and silly to a degree? Yes, but it's just as much a political statement.

0:23:57.9 Peter: You see the similar deployment of iconography by people who are into guns on the right, right? If I want to make a comparison on the other side of the spectrum. The culture is simultaneously about enjoying guns and also about making a political statement. And I'm not trying to get too melodramatic about this kid's dumb banner, but what I'm saying is that the line between absurdity and a serious political statement is often a lot less clear than you might initially think, and we should be careful before we let the government start treading all over that line.

0:24:25.7 Michael: Right, and like earlier, we talked about the context of religiosity and warmongering that was in the air, but also there's a far more nuanced message here than just do illegal drugs. Some other context worth considering is just that this was being broadcast literally all over the world. It's the Olympics, everybody's watching, and there's this inherent statement, which I think is reflected in this lawsuit itself about free speech itself, that this is a country where you can hold up a dumb sign like Bong Hits 4 Jesus. And that could be received as not just absurd or funny by citizens of other countries, but as an expression of freedom and liberty that they might not have themselves.

0:25:07.5 Rhiannon: Totally. Yeah.

0:25:08.9 Michael: It's like an important core value here.

0:25:11.2 Rhiannon: Right.

0:25:11.5 Peter: Absolutely.

0:25:13.3 Michael: Except apparently we don't have them, it turns out.

0:25:18.0 Peter: That's right.

0:25:18.6 Michael: So I also want to... Continuing from our lack of liberty, we should talk about Thomas's concurrence, 'cause this shit is crazy.

0:25:29.1 Rhiannon: This is a step inside the mind of somebody... Wow.

0:25:34.8 Michael: It is not pretty, and it's also not honest, it is like a phenomenally dishonest opinion. The basic gist is that Thomas doesn't believe students should have any free speech rights when they're in school, he doesn't think those kids who wore black arm bands to oppose the Vietnam War in the '60s should have been allowed to do that. He wants that case overturned, he's an originalist, so he thinks we should base our analysis of what's allowed by the Constitution on what people were doing around the time of the Founding.

0:26:05.8 Michael: Thomas says in 1820, if a student was out of line, a teacher could take a belt with nails in it and just whip you in the back.

0:26:17.3 Peter: Which is proof that students shouldn't have free speech rights now. You can't argue with that.

0:26:25.8 Michael: It's worth noting that pretty much everybody agrees that the First Amendment is much broader now and provides much more speech protections for everyone than it did at the time of the Founding. That's just like a fact. You learn that in law school. It's also a pretty uncontroversial opinion that that's a good thing, and we should not wind back the clock. But Clarence Thomas is like, "I agree and disagree. Free speech is far more protective of expression now, and we should wind back the clock." All of his historical analysis is done by looking at regular practice in schools prior to 1850, which like, okay, if you're an originalist, that kind of makes sense, except that the First Amendment didn't apply to the states prior to 1850. And he even says that, he recognizes that, and in fact, the First Amendment wasn't fully incorporated against the states until 1925, so who fucking cares what was happening in 1840, how does that have any relevance to how the First Amendment works here.

0:27:26.0 Michael: It's totally nonsense. And so what does he say is going on in these schools that he thinks is constitutionally permissible? He says: "The earliest public schools, teachers taught and students listened, teachers commanded and students obeyed. Teachers did not rely solely on the power of ideas to persuade, they relied on discipline to maintain order." And if that sounds sort of fucking authoritarian to you, you should know that he uses the phrase "maintain order" at least two other times in this opinion. It's just...

0:28:03.9 Rhiannon: God, just addicted to rigid social hierarchy for no reason, and pointing to this invented tradition again as the model that we should be emulating. For what? Like shit was bad back then, bro.

0:28:20.8 Peter: The idea that kids were not misbehaving in the 1800s, even if you give credence to the idea that our constitutional interpretation should somehow derive from what was happening in a classroom in the early 1800s, which by the way, it's like a classroom of only white boys led by whatever woman in town is a widow, just like your husband dies and you're like, "Don't worry, Mary, we'll find you some purpose, you will teach these children." And then the kids fucking sit down and they learn about fucking alchemy or whatever, I don't know, whatever they thought was true back in the 1800s.

0:29:04.9 Peter: And like Clarence Thomas for some reason has this vision of this time that is this pristine vision of how children should be learning. It's fucking embarrassing.

0:29:15.6 Michael: Anybody who's read Tom Sawyer and Huckleberry Finn knows that's absolute bullshit. There's one scene where Tom Sawyer's like carrying around a dead cat or something, and it's like... I don't think it's ever explained, it's just like left to your imagination, what the fuck he was up to.

0:29:30.8 Rhiannon: Right, the idea that kids were organically good back then is a total lie. I mean, the classic example of misbehavior and a prank on a teacher is putting a pin or something sharp in her chair. Kids were straight up assaulting their teachers, okay?

0:29:51.6 Michael: Maiming them. Causing physical pain. Yeah, but so it's worth asking, though, what does Thomas mean by maintain order? Because if wearing a black armband is disorder, it's not like unruly, that's not loud, that's not running around or breaking things, it's just putting a fucking arm band on. Like, what is disorder in his mind? It's basically accepting the idea that any expression of a contrary or subversive opinion is inherently disordered.

0:30:27.3 Peter: Yeah. The classic conservative position, which is everything that happened in the '60s and onward has been a horrible mistake. We should, by total coincidence, go right back to right before the Civil Rights movement, that's when things were spot on.

0:30:43.5 Michael: Or in this case, right before Civil War Amendments.

0:30:48.2 Rhiannon: Yeah, even further.

0:30:51.7 Michael: Jesus Christ, man.

0:30:53.6 Peter: So I mentioned earlier that the legal test for student free speech is the substantial disruption test. If student speech is not a substantial disruption to the educational process, it is supposedly protected under the First Amendment, but like I mentioned, there was a case in the '80s about a student who gave a vulgar student election speech. The Supreme Court in that case said, well, no, it's not a substantial disruption, but it's too lewd, so we don't think that's protected speech.

0:31:18.3 Peter: And this case is very similar. Roberts does not say that this is disruptive, he just says, well, look, you can't say that, it's about bong, you can't say bongs. So in 1969, the Court had established a very simple test: You can say what you'd like as long as it's not disruptive. But ever since then, every time the conservatives on the Court have seen some new student speech that they didn't like, but that isn't actually disruptive, they just make a new rule up to ban that too. If the rule is that you can't say anything that's disruptive, and the Court just makes up a new rule every time they see some speech they personally don't like, then there really is no rule. You can add that to the laundry list of examples of how the conservatives claim to be just like passively and objectively interpreting the law is absolute bullshit.

0:32:04.1 Peter: And one final thought I have here is maybe slightly less academic, but it really feels to me like this opinion goes to the heart of the basic premise of freedom from the government. If you're doing something that doesn't hurt anybody, they should have to leave you alone. I think that's true whether you're at school or anywhere else. If you're not hurting anybody, you ain't done nothing wrong. That is just morality 101, baby. From Jesus to Gandhi, right across the board. But conservatives, they don't really believe in freedom in any general sense. They believe in traditional hierarchies and morality derived from authority.

0:32:41.4 Peter: When they say freedom, they mean freedom from liberal interference with what they believe to be the natural order. That's why their perception of who should be brutalized by cops is just so completely dependent on the context, because their beliefs are not about ideological notions of freedom, their beliefs are about who has power and who should have power. And when they see someone who they don't believe should have power try to exercise influence, they don't care about that person's freedom. It's a consistent belief structure, if you view it as one that's about power rather than anything particularly ideological.

0:33:17.2 Rhiannon: Right. And you can see this in their rhetoric. When it comes to the free speech of the powerful, they speak breathlessly in flowery language, and there are examples from lots of different cases of this kind of treatment. Justice Kennedy in Citizens United said, "Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it."

0:33:53.5 Rhiannon: In a case called McConnell v. FEC, Justice Scalia said, "There is no such thing as too much speech." And Roberts himself, John Roberts, said in FEC v. Wisconsin Right to Life, he was quoting another case and he said, "First Amendment freedoms need breathing space to survive." And then back in McConnell v. FEC, Justice Kennedy again, "The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms and new forums for the expression of ideas. The civic discourse belongs to the people and the government may not prescribe the means used to conduct it."

0:34:36.1 Peter: Wow, beautiful.

0:34:36.8 Rhiannon: Thanks, boys.

0:34:39.6 Michael: Sounds great.

0:34:42.1 Peter: Yeah. So those quotes, if you're wondering, that's how the conservatives on the Court talk about free speech when what it means by free speech is the right of corporations to engage in unfettered political advertising, which is what all of those cases are about. That sort of rhetoric is conspicuously absent from this case, which is a case that's much closer to what I think most people conceptualize as their actual right to free speech, the right to hold up a sign that says whatever you want it to say. By the way, holding up a sign is also something that anyone can do.

0:35:12.6 Peter: Contrast that with spending millions of dollars on political advertising, which might be something you can do constitutionally, but it's not something that I think any of our listeners realistically could actually do, even if they wanted to.

0:35:26.0 Rhiannon: Yeah, yeah, we've talked before about you have to have access to a right and to your freedoms in order for that to really be real.

0:35:36.3 Peter: Yeah, and if you've got a marker and some poster board, you can do this, right? You can hold up a sign that says "Bong Hits 4 Jesus."

0:35:42.3 Rhiannon: Right.

0:35:44.1 Peter: When it's the ultra-wealthy dictating the shape of our political discourse, the Court just goes to the mats for their rights to do it. This is what our democracy is built on, right? But when an average person wants to express themselves in a very simple way, to the Court that is and will always be just rabble-rousing. I think that's the bottom line here, and that's why their view of social hierarchy and the Thomas concurrence is so important to this stuff. All of this bullshit about what students should be able to say and the right of the school to control them is always gonna be secondary to the fact that the Justices just don't have that much concern for people who aren't that powerful.

0:36:23.8 Peter: They were never gonna view subversive speech as being particularly important. They will always view it with skepticism. Thomas is still saying that those kids from 1969 should not have been able to wear arm bands to school that signal their opposition to the Vietnam War because it's subversive, and conservatives naturally have this tendency to oppose subversion.

0:36:47.0 Michael: Right, and it's subversive to the very power structure that empowers them.

0:36:50.9 Rhiannon: Yes, exactly.

0:36:52.9 Michael: That they rely on, that they're a product of.

0:36:56.4 Peter: Yes, absolutely. Earlier, we were talking about the sort of gray area here, right? There's a link between this sort of silly rhetoric about weed, and more serious statements about weed and about drug use and about freedom. This incident happens in 2002. This case is handed down in 2007. Here we are in 2021, and legalization across the country feels like an inevitability. And a big part of that is that in the early 2000s, you had a protracted movement, and a lot of which involved this sort of fun but subversive speech that was meant to poke at the traditional understanding of marijuana as dangerous. And you see the Court sort of taking a stance that it... Of course, yeah, we're just gonna grant that it's dangerous, right? And schools of course should be able to push against illegal drug use. But this stuff is important in the aggregate. You see this sort of speech build up to become the actual law in our country. And it did so to a large degree by convincing people that this is in fact relatively harmless.

0:38:04.4 Rhiannon: Right, exactly.

0:38:05.1 Michael: That's right.

0:38:05.9 Rhiannon: You can say that there was a strategy of juxtaposing how harmless, how fun smoking weed can be with how seriously people in power were demonizing it and talking about how it was so dangerous.

0:38:19.1 Peter: Yeah, and we're talking about something that might seem in a very discrete way to be unimportant. Whether or not this kid got suspended from school, certainly in and of itself, probably the least important case we've tackled, but this is not about this kid. It's not even just about free speech. The rhetoric that is being used by the Court here, the idea that the government should be able to drop the hammer on people for expressing these sorts of viewpoints is deeply intertwined with the idea that people should have to go to prison for possession of small amounts of marijuana. The impact of this sort of cultural viewpoint, the conservative view of drugs at this point in time is responsible for immense human suffering. And that's exactly why this sort of speech is important.

0:39:07.7 Michael: That's right.

[music]

0:39:13.5 Michael: Well, I'll tell you what, right after this, I'm gonna go take a bong hit and I will do it in Jesus' name.

0:39:18.8 Rhiannon: Thank you, Michael.

0:39:19.5 Peter: Amen.

[laughter]

0:39:23.3 Michael: [0:39:23.3] ____ again.

[laughter]

0:39:30.5 Peter: Next week is Navarette v. California, a case about whether the cops can pull you over because they received an anonymous tip. We're back on our cop-hating bullshit, you know what I mean? It's good.

0:39:41.6 Rhiannon: That's right.

0:39:43.2 Peter: Back to our roots. I'm excited.

0:39:45.2 Rhiannon: Your girl's back and ready to.

0:39:46.6 Peter: Follow us on Twitter @fivefourpod. Fivefourpod.com to go buy our merch. Tell your parents about us. We'll see you next week.

0:40:02.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.