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View Diary: Supreme Court [heart] Boobies! (104 comments)

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  •  It was the Third Circuit, and ... they did. (16+ / 0-)

    These are clearly judgment calls, a fact that the dissenters below focused on:

    Practical problems with the Majority's test abound. Where and how do school districts line-draw regarding the nouns used to describe the subject matter of the particular awareness campaign? The Majority has established that at opposite ends of the spectrum are “boobies,” on the one hand, and “tits,” one of the “seven dirty words,” on the other hand. What lies between those two extremes and how a school district is to make a principled judgment going forward remain open questions. No doubt, there are some words and phrases that all would agree should be afforded no protection in the middle school context, despite their use in promoting an important social issue. My recalcitrance to extend First Amendment protection to the slogan at hand is simple—why is this word, “boobies,” different? Why does it deserve protection? Is “boobies” a term that is inherently innocuous or sophomoric, as the Majority asserts? As noted in the Majority, “ta tas” is used as the descriptive term in some breast cancer awareness campaigns. The ambiguity of “ta tas” in this context is beyond question. What also seems beyond question is that the school district, according to the Majority, must lay dormant to a student's use of “ta tas” or any synonym of “breast” (other than “tits”) as long as the student is commenting on a political or social issue, here, breast cancer awareness. The lack of certitude or a workable parameter unnecessarily handcuffs school districts.

    What of the circumstance when an anatomically correct term is used in an awareness campaign? Applying the Majority's test, “I ♥ penises,” “I ♥ vaginas,” “I ♥ testicles,” or “I ♥ breasts” would apparently be phrases or slogans that school districts would be powerless to address. Would the invocation of any of these slogans in a cancer awareness effort fail to garner protection under the Majority's test? It would appear not. What of the other slogans that the Majority mentions in its opinion that are sufficiently ambiguous?

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