‘Bong Hits’ case going back to court - Juneau Empire
The “Bong Hits 4 Jesus” case is headed back to court.

The 9th U.S. Circuit Court of Appeals will hear arguments in the case in September, local attorney Doug Mertz said Wednesday.

Mertz represents Joseph Frederick, the former Juneau-Douglas High School student who displayed the “Bong Hits 4 Jesus” banner that sparked a free speech debate that has been going on for six years and has been heard by the U.S. Supreme Court.

Mertz said the Supreme Court ruling had not addressed all the issues involved in the case, particularly whether Alaska’s free speech provisions protected Frederick’s actions and whether the banner constituted a legitimate political or social protest rather than a pro-drug declaration.

Frederick pressed his case in district court, but was turned down. The appeal is in reaction to that decision.

“Frederick’s banner had nothing to do with drugs, the principal’s seizure of it was unreasonable, and … the banner was well within the protections of the Alaska Constitution,” Mertz said in a statement.

Mertz said he was notified directly that the same panel of three judges that had previously sided with his client agreed to hear the case.

The case started in 2002, when then-Juneau-Douglas High School Principal Deborah Morse took down Frederick’s banner at a school-sponsored, off-campus event, and suspended him from school.

Frederick sued, saying his right to free speech had been violated. The case eventually went to the Supreme Court, which sided with Morse and the school district in 2007.

The Supreme Court had ruled in favor of the principal on the narrow interpretation that “Bong Hits 4 Jesus” was a passage intended to celebrate drug use and therefore the school, in its mission to prevent student drug use, is justified in tearing down the banner.  Pete Guither at the DrugWarRant cited this review from the SCOTUSblog:

The Chief Justice’s opinion, too, indicates that the case would have come out differently if the banner had “convey[ed] any sort of political or religious message,” such as that involved in “political debate over the criminalization of drug use or possession,” rather than (in the Court’s view) mere “student speech celebrating illegal drug use.” Debate, political and religious messages — protected. “Celebration” of illegal activity (drug use, anyway) — no go. That’s the upshot.

If only the sign had said “It is politically wrong to make Bong Hits (which we would never endorse) illegal 4 Jesus, who I believe is the Son of God and commanded by Him to partake of the cannabis sacrament”, then he would have passed under the Roberts court.  It might have been hard to read and even harder to write with duct tape, but at least it wouldn’t have been illegal student speech celebrating drug use.

Download the NORML Daily Audio Stash for 2008-04-03

Today is Cannabis and the Law Day here at the Stash and coming up after the news we speak with Attorney Adam Wolf of the ACLU ’s Drug Law Reform Project. He just argued a case before the Alaska Supreme Court that questions the Ravin v. State decision that over thirty years ago declared that the personal possession and use of cannabis at home is protected under the privacy rights outlined in the Alaska constitution.

Then Cannabis Karri brings us a great tokin’ tune from a Pacific Northwest band called Ivy League… uh, how do you get Ivy league when your band members are from Seattle and Provo? Anyway, they’ve got a song called “Let it Burn” for your musical marijuana enjoyment.

And to conclude our show, we speak with Rob Corry, an attorney in Denver, Colorado, who is representing a Fort Collins couple that plans to sell medical marijuana from their holistic medicine center.

We’ve got a lot to cover, so sit back and relax with your favorite strain and enjoy your NORML Daily Audio Stash…

WA high court says random school drug testing unconstitutional
OLYMPIA, Wash. — The state Supreme Court ruled Thursday that random drug testing of student athletes is unconstitutional, finding that each has “a genuine and fundamental privacy interest in controlling his or her own bodily functions.”

The court ruled unanimously in favor of some parents and students in the lower Columbia River town of Cathlamet who were fighting the tiny Wahkiakum School District’s policy of random urine tests of middle school and high school student athletes.

The high court wrote, “we can conceive of no way to draw a principled line permitting drug testing only student athletes.”

“If we were to allow random drug testing here, what prevents school districts from either later drug testing students participating in any extracurricular activities, as federal courts now allow, or testing the entire student population?” Justice Richard Sanders wrote for the court’s plurality. Joining him were Chief Justice Gerry Alexander and Justices Susan Owens and Tom Chambers.

“In particular, the school district has failed to show that a suspicion-based regime of drug testing is inadequate to achieve its legitimate objectives,” [Justice Barbara] Madsen wrote.

Madsen wrote that if there is not an observable drug problem in the school, “the school’s interest in detecting drug use does not justify nonconsensual drug testing.”

She wrote that if drug use is a problem, then schools have the individualized suspicion necessary to require a drug test.

“Thus, it is difficult to see how a suspicionless drug testing program is necessary,” she wrote.

Hooray for the Pacific Northwest (yeah, I’m biased)! It’s nice when your state constitution provides you more privacy protections than the United States Constitution… just ask the people of Alaska, where personal possession of <1oz. of cannabis at home and growing <25 plants is protected as a privacy right.

I particularly like Justice Madsen’s commonsense opinion: If you can’t see a drug problem, there’s no need to test randomly, and if you can see the drug problem, then you’ll know who to test!