Abortion, Bongs, Jesus, and the Right Wing’s Continued Inconsistency on Speech Rights

Imagine, if you will, that you suddenly find yourself a federal appellate judge. Congratulations! Thirsty? Law Clerk #2– two mocha frappucinos, and make it snappy!

Much better. Now that we’re both hydrated, let’s take a look at the docket. Today we have two cases, both appeals from adverse judgments. In the first, we have High School Student #1, suspended for carrying a “Bong Hits 4 Jesus” sign at a school rally. In the second, we have High School Student #2, suspended for wearing a shirt that graphically supports the “pro-life” position of the abortion debate. Both claim that the First Amendment protects their right to politically advocacy at their schools, even and especially if that advocacy includes shocking but non-profane words or imagery.

No matter what your instincts on these two cases, you have to admit, it’s hard to craft a rule of law that provides different outcomes for the two students. The only apparent difference between these cases is that, in the former, the religious overtones are purposefully ironic, while in the latter they’re sincere and deeply-held. But that shouldn’t really matter, should it? Either both students are entitled to their admittedly shocking forms of political expression, or neither are. There may be nuances that differentiate the two cases, but few will find them, and even fewer will find them controlling. Of course, one form of speech is “liberal,” and the other “conservative.” But one of the strongest mandates of First Amendment law is that the government may not favor one viewpoint over another. These political notes shouldn’t matter, at all.

Unless, of course, you’re the religious right. For them, the reverent subtext of the pro-life demonstrator’s shirt is inherently “good,” while the mocking subtext of the pro-whatever demonstrator’s banner is inherently “evil.” Furthermore, this political distinction should be given legal effect: pro-religion speech is good, and anti-religion speech is evil.

Increasingly, with their ouster from nearly all political offices, we see the religious right taking shelter in the First Amendment, to make increasingly frantic, increasingly violent appeals to religion or “conservative values,” whatever those are. How curious, though, that this strong form of First Amendment protection applies, in the right’s eyes, only to their speech — still more proof that, for the religious right, law is the game itself, rather than the rules of the game.