19 Mar Comparative Free Speech About Bong Hits
This morning the Supreme Court will hear Morse v. Frederick, a case about a high school student who held up a banner advocating “Bong Hits for Jesus” at a school function associated with the passing of the Olympic torch through Juneau, Alaska. The school principal, Deborah Morse, refused to allow Joseph Frederick to display the banner, and he was later disciplined for his conduct.
Given that several of the justices are strongly committed to the principled use of comparative constitutionalism, I’m confident that something along the lines of the following questioning of Deputy Solicitor General Edwin Kneedler will be part of the oral argument:
Justice Ginsburg: “Does what the rest of the world think about restrictions on bong hit speech—should that have any relevance at all?
Mr. Kneedler: “No. The bong hit practices other countries, including restrictions on bong hit speech, should have no relevance in deciding the First Amendment principle at issue here.”
Justice Ginsburg: “But aren’t we in search for common denominators of freedom governing the relationship between governors and the governed? Isn’t that the teaching of Roper and Lawrence?”
Mr. Kneedler: “Justice Ginsburg, I think you can distinguish Roper and Lawrence from the free speech context. In those cases…”
Justice Kennedy: “But counsel, if I may, what if Joseph Frederick said that his advocacy of bong hits is central to his own constitutional search to define meaning, to comprehend the universe and to understand the mystery of human life?”
Mr. Kneedler: “With all due respect Justice Kennedy, I’m not sure that Joseph Frederick’s personal quest for the mystery of human life through mind-altering drugs should be relevant to the constitutional analysis.”
Justice Kennedy: “Why not? What if we could establish that the right to bong hits and bong hit speech has been accepted as an integral part of human freedom in many other countries? Can the Juneau School Board honestly show that the governmental interest in circumscribing this speech is somehow more legitimate or urgent?”
Mr. Kneedler: “I’m not aware of anything in the record to indicate that bong hits or bong hit speech is an integral part of human freedom in other countries.
Justice Kennedy: “I would hazard that those who frequent Dutch coffee houses may beg to differ with you.”
Mr. Kneedler: “But your Honor, if you are going to take that logic, I could just as well reference other countries where …”
Justice Alito: “… Mr. Kneedler, do you really want to go down that path and suggest that we should interpret the First Amendment by taking a poll of the countries of the world? Don’t you think the Framers would be stunned by that idea? …”
Justice Scalia: “… Yes, exactly. And I would assume you agree that constitutional limits do not wax and wane based on foreign moods, fads, and fashions about bong use?”
Mr. Kneedler: “Yes, I agree with that entirely Justice Scalia. But I was just responding to Justice Kennedy’s comment that….”
Justice Kennedy: “But counsel, how does it lessen our fidelity to the Constitution if we acknowledge and affirm that certain fundamental rights in other nations—including the right for juveniles to advocate the use of bong hits—are part of our own heritage of freedom?”
Mr. Kneedler: “Umm… well, first, I don’t think you can show that bong hit advocacy in the school context is part of our own heritage of freedom. And second, even if you do look abroad you will find that most countries do not allow this sort of advocacy….”
Justice Breyer: “Counsel, if I may interrupt. On this kind of an issue you’re basically asking a human question, and the Americans are human — and so is everybody else. Don’t you think that other countries—particularly societies that didn’t used to be democratic—would benefit from our referencing their opinions on bong hits? Don’t you think it would give those constitutional courts a bit of a high?
Mr. Kneedler: “I’m not sure how to respond to that, Justice Breyer. Can you clarify how that is relevant to whether the Juneau School Board was constitutionally permitted to discipline Mr. Frederick for advocating the use of bong hits?”
Justice Breyer: “Well, it just helps those other countries in their constitutional decision-making process. Why should we always be the “lending country” instead of the “borrowing country” on constitutional cases? You will concede, won’t you counsel, that our referencing the constitutional decisions of fledging democracies will help those countries?”
Mr. Kneedler: “But Justice Breyer…”
Justice Scalia: “Counsel, I think what the other justices are getting at is that either we reconsider our constitutional jurisprudence in light of the views of foreigners in all contexts, or else we stop relying on foreigners’ views as part of the reasoned basis of our decisions. They did it in Roper and Lawrence and now they are arguing we should do it here too. You either do it or you don’t. At least they are being consistent here. Consistently wrong, but consistent.”
Reductio ad absurdum is always an enjoyable form of argument. But anyway, I think it actually is possible to distinguish reliance on comparative jurisprudence in the First Amendment context from that in the Eighth Amendment context. The latter uses very abstract language of ‘cruel and unusal punishment’, which is capable of an evolving interpretation. There is nothing unusual, I think, in looking at what other courts are doing as persuasive authority for what is in today’s world considered to be ‘cruel and unusual.’ The fact that there is a virtual unanimity on the issue of juvenile death penalty only makes comparative jurisprudence more persuasive. In the First Amendment context, however, the freedom of speech as it is conceived of in America is indeed a uniquely American brand. Here in Europe we don’t care about things such as ‘content and viewpoint neutrality’ or whatever – we send Holocaust deniers into prison. When it comes to freedom of speech America is unique, and it has every right to stay so. The German jurisprudence on human dignity, or the South African jurisprudence on equality are also such unique examples, where every country, though a member of the community of democratic nations, is faithful… Read more »
So, in some cases resort to comparative jurisprudence serves as an additional premise in a compelling argument (icing on the cake as it were) and in some cases it simply informs us of clearly recognizable differences in the translation of democratic ideals and values. But is it not also used to drive a wedge in domestic contexts where there appears to be a stalemate among opposing parties, with no new arguments to bring to the table? In such cases it may help us re-think this or that aspect of well-worn arguments: in the case of the eighth amendment and capital punishment we might resort to comparative jurisprudence to see exactly why law-makers in other democratic nation-states have seen fit to abolish capital punishment. Indeed, we can look to such nations as providing vital experiments the results of which offer us interesting and new data whereby we might test, for example, propositions advance by deterrence theorists.