WASHINGTON - So maybe this is why all those figures in the Supreme Court friezes are wearing togas.
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As Ken Starr told the nine justices Monday why a student's "Bong Hits 4 Jesus" banner didn't qualify as free speech, the whole bunch of them sounded one toke over the line.
"So if the sign had been 'Bong Stinks for Jesus,' that would be ... a protected right?" asked Ruth Bader Ginsburg.
"Suppose that this particular person had whispered to his next-door neighbor, 'Bong Hits 4 Jesus, heh, heh, heh,' " contributed Stephen Breyer.
"What if the sign said, 'Bong Hits Should be Legal'?" queried John Paul Stevens.
Anthony Kennedy got really psychedelic. "Suppose the banner said, 'Vote Republican'?"
David Souter inhaled. Imagine, he said, that the student "just holds a little sign in the Shakespeare class that says 'Bong Hits 4 Jesus'. . . And they say, 'Well, so-and-so has got his bong sign again.' They then return to 'Macbeth.' " Far out. Antonin Scalia wanted a turn. "Smoke Pot, It's Fun," he proposed.
"Rape Is Fun?" Kennedy said.
"Extortion Is Profitable?" Scalia rejoined.
All that was missing in the chamber Monday was black light and Bob Marley. And to think Douglas Ginsberg withdrew his nomination to the high court for using marijuana.
If the justices sounded as if they were doin' the doobies, the case invited a certain amount of reefer madness. The case began when a high school kid unfurled a banner across the street from his Juneau high school in 2002 when the Olympic torch was passing through town.
By the student's own admission, the sign had no meaning, but that didn't matter. The principal suspended him; he sued. Ken Starr and the Bush administration sided with the principal. The ACLU and various Christian groups sided with the student. Thus does a high-school prank become a federal case - an important first-amendment case before the high court, no less.
Breyer lamented that the student's action wasn't "a serious effort" to challenge drug laws. "It was a joke - it was a 15-foot banner," he told the student's lawyer, Douglas Mertz, before demanding, "What's your response?"
"My response, your honor, is that, first of all, it was a 14-foot banner," Mertz answered.
"That's an excellent response," Breyer judged.
It was as good a response as any for a case in which a Dadaist slogan in Juneau will wind up setting a new precedent for students' speech. If Starr and the administration prevail, students might lose any semblance of free expression. If the other side wins, teachers might lose any semblance of order in the classroom.
The justices seemed frustrated with both sides. Starr got only 90 words into his argument before being interrupted by Kennedy, then Souter, each demanding to know how the banner had been disruptive. "I'm missing the argument," Souter told the former Whitewater prosecutor.
Even Chief Justice John Roberts, though sympathetic to Starr's case, pointed out: "The problem, Mr. Starr, is that school boards these days take it upon themselves to broaden their mission well beyond education."
The skepticism grew when Edwin Kneedler, an administration lawyer, tried to argue that a school could ban any speech "inconsistent" with its educational mission. "I find that a very disturbing argument," said Samuel Alito. Schools "can define their educational mission so broadly that they can suppress all sorts of political speech."
Mertz, arguing for the student, fared even worse than Starr and Kneedler. He got out only one sentence - "This is a case about free speech; it is not a case about drugs" - before Roberts interrupted.
"It's a case about money," the chief justice said.
"Would you waive damages against this principal, who has devoted her life to this school?" asked Kennedy, "You're seeking damages from her for this sophomoric sign that was held up."
Mertz didn't get much further before Scalia piped up. "This is a very, very - with all due respect - ridiculous line," he advised the lawyer, in a tone that did not suggest respect. "Where do you get that line from?"
The argument was complicated by the plain fact that the justices had no idea what "Bong Hits 4 Jesus" meant in the first place.
"This banner was interpreted as meaning, 'Smoke Pot,' no?" asked Scalia.
"Exactly, yes," Starr answered.
Souter dissented. "It sounds like just a kid's provocative statement to me," he said.
"One could look at these words and say it's just nonsense," Ginsburg concurred. "It isn't clear that this is 'Smoke Pot.' "
But Scalia was moving on. How about the student who calls out "Drugs are good for you - I use them all the time," he proposed. "That's perfectly OK?"
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