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9th Circuit Takes a Hit off of Jesus’ Bong

bong.jpgYou don’t think content matters in a First Amendment case? Well, get this: In the 9th Circuit today, arguably the court’s most liberal member, Judge Stephen Reinhardt ruled against the First Amendment in the case Harper v. Poway Unified School District, upholding a decision that a high-school student was not allowed to wear a T-Shirt to school that bore the message, “Be Ashamed, Our School Has Embraced What God Has Condemned,” on the front and “Homosexuality is Shameful, Romans 1:27” on the back. In the decision, Reinhardt stated:

Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply “unpleasant and offensive.” It strikes at the very core of the young student’s dignity and self-worth.

While I completely agree with the outcome in this case, it’s hard to imagine that Reinhardt’s decision wasn’t grounded in his own liberal bias – after all, Reinhardt didn’t take issue with the fact that the school had a “Day of Silence” for Gays and Lesbians, which led the student to wear the aforementioned T-Shirt in the first place. Certainly, an argument could be made that the student in this case was engaging in hate speech, which might change the dynamics of the case. But, from my viewpoint, the student’s T-shirt was merely a product of simple bigotry.

But what’s disconcerting here is that, earlier this year, Judge Kleinfeld came to a different conclusion when the message was different. Indeed, in Frederick v. Morse, Kleinfeld joined the unanimous court in holding that the school violated the First Amendment by forcing a student to stop displaying a banner during a Winter Olympics parade. And what was the message on the banner: “Bong Hits 4 Jesus.”

So, the lesson here, at least according to Judge Kleinfeld, is: It’s not okay for Jesus to Condemn Homosexuality, but it is okay for Jesus to Encourage Pot Smoking.

Amen to that, brother.

| Comments (3)


I never cease to be amazed by how you americans twist the original meaning of words. That judge is no liberal by the correct meaning of this word. A true liberal would never dare to take a stand against individual freedoms, by giving some sort of special collective rights to certain groups

I totally disagree with the outcome of this case. Disgusting though Harper's opinion may be, he has the right to express it in such a manner. The First Amendment doesn't protect anyone from having their poor baby feelers hurt. Even unpopular speech is sacred, and that is a core principle of our country's greatness.

I agree that the case is both interesting and possibly troubling, but I'm confused by your conclusion about Judge Kleinfeld. Kleinfeld joined the dissent from denial of rehearing in Harper, which argued that the anti-gay T-shirt was protected speech. So there's no contradiction there -- he voted to protect the speech in both cases. (Which isn't surprising, because he has something of a libertarian streak.)

Maybe you're confusing him with Judge Reinhardt? Reinhardt wasn't involved in the "Bong Hits 4 Jesus" case, but there's a lot of tension between Reinhardt's holding in Harper and the views on free speech he's expressed in other cases. Eugene Volokh has a post here about those contradictions.