Picking up on a story we last discussed
in April 2011, the United States Court of Appeals for the Third Circuit
has upheld the right of two two middle-school girls to wear "I ♥ Boobies!" bracelets at school to promote breast cancer awareness. The ruling may create a split with other circuits' rulings on student speech rights, which would provide grounds for the Supreme Court to grant certiorari if the School District appeals.
Seventh-graders Kayla Martinez and Brianna Hawk started wearing "I ♥ Boobies!" bracelets at their school because they saw friends wearing them and were interested in the breast cancer awareness message. While it caused no disruptions in school, teachers freaked out, with some fearing that the bracelets might lead to offensive comments or invite inappropriate touching from the boys. The principal announced that bracelets with the word "boobies" were banned (and he said the word "boobies" over the PA system). The girls wore them anyway. They were each given one and a half days of in-school suspension and were forbidden from attending the Winter Ball.
They sued. They won in April 2011, and by a 9-5 ruling of the Third Circuit yesterday, sitting en banc, won again on Monday.
The key for the panel, surprisingly (perhaps), was Justices Kennedy and Alito, who back in the Bong Hits 4 Jesus case conditioned their votes against the student on the grounds that his particular speech could not "plausibly be interpreted as commenting on any political or social issue," suggesting that if such an interpretation were possible they'd have flipped sides. As such, the Third Circuit's majority emerged with the following test when it comes to kinda-dirty student speech:
(1) Plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.
And that's what made this an "open and shut" case, because according to the Court "boobies" isn't plainly lewd.
The slogan bears no resemblance to Fraser’s “pervasive sexual innuendo” that was “plainly offensive to both teachers and students.” Teachers had to request guidance about how to deal with the bracelets, and school administrators did not conclude that the bracelets were vulgar until B.H. and K.M. had worn them every day for nearly two months. In addition, the Middle School used the term “boobies” in announcing the bracelet ban over the public address system and the school television station. What’s more, the bracelets do not contain language remotely akin to the seven words that are considered obscene to minors on broadcast television.
Just what did Matthew Fraser say that was so bad? Why might this set up a Supreme Court case? And how could anyone possibly dissent? Meet me below the orange gnocchi, during recess.
First, let's just review the speech in question in Bethel School Dist. No. 403 v. Fraser (1986), which upheld the suspension of a high school student who gave the following address at assembly in support of a candidate for student government:
I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most . . . of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds.
Jeff is a man who will go to the very end -- even the climax, for each and every one of you.
So vote for Jeff for A.S.B. vice-president -- he'll never come between you and the best our high school can be.
There, the Burger court ruled that "vulgar and lewd speech" lacking political content could be punished, even when it caused no disruption, because it was directed at minors in a captive setting.
Morse v Frederick (the Bong Hits case) expands that to include speech which encourages illegal drug use to minors
when the speech lacks a policy/political component.
Or does it? This is what the dissenters key in on, because Justices Alito and Kennedy also signed onto the more expansive majority opinion which lacked the "but we'd feel differently if there was some political component to the pro-drug speech" disclaimer. So, the five dissenters argue, there is no "but if it's policy!" exception because as a formal matter those justices' votes didn't completely depend on it. This, they argue, puts the Third Circuit in opposition to eight other circuits which deemed the Chief Justice's majority opinion to state the governing rule. (And that's why the Court may be interested in hearing an appeal, in order to resolve this split as to what they meant.)
As such, argue the dissenters, forget about whether the bracelets commented on social or political issues: because they "would seem to fall into a gray area between speech that is plainly lewd and merely indecorous" and it was "objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre," the school should win. Moreover, the dissenters argue, the question should be whether the school administrators' reading was reasonable, not whether the students intended to comment on public issues.
And think of the children!
if we were to hold that the breast cancer message here makes any sexual reading of the bracelets unreasonable, schools would be obliged to permit more egregiously sexual advocacy messages. As [Principal Angela] DiVietro acknowledged, "other bodily parts in the human anatomy . . . can get cancer and . . . other types of slang terms" would have to be condoned. DiVietro raised the specter of an "I ♥ Balls" slogan to support testicular cancer awareness. These examples are not speculative. The Testicular Cancer Awareness Project sells "feelmyballs" bracelets to encourage male self-examinations and general awareness. See Testicular Cancer Awareness Project, http://www.feelmyballs.org/.... If middle school students have a constitutional right to wear "I ♥ boobies!" bracelets, it would be difficult to articulate a limiting principle that would disallow these other catchy phrases, so long as they were aimed at some socially beneficial objective.
To which the majority responds:
The School District invokes a parade of horribles that, in its view, would follow from our framework: protecting ambiguously lewd speech that comments on political or social issues—like the bracelets in this case— will encourage students to engage in more egregiously sexualized advocacy campaigns, which the schools will be obliged to allow. See Pa. Sch. Bd. Ass’n Amicus Br. in Supp. of Appellant at 19 (listing examples, including “I ♥ Balls!” apparel for testicular cancer, and “I ♥ Va Jay Jays” apparel for the Human Papillomaviruses); (raising the possibility of apparel bearing the slogans “I ♥ Balls!” or “I ♥ Titties!”). Like all slippery slope arguments, the School District’s point can be inverted with equal logical force. If schools can categorically regulate terms like “boobies” even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.
To make matters worse, the School District has greased the supposedly slippery slope by omitting any empirical evidence. We have no reason to think either that the parents of middle-school students will be willing to allow their children to wear apparel advocating political or social messages in egregious terms or that a student will overcome the typical middle-schooler’s embarrassment, immaturity, and social pressures by wearing such apparel. And many of the School District’s hypotheticals pose no worries under our framework. A school could categorically restrict an “I ♥ tits! (KEEP A BREAST)” bracelet because, as the Supreme Court explained in Pacifica, the word “tits” (and also presumably the diminutive “titties”) is a patently offensive reference to sexual organs and thus obscene to minors.
And, moreover:
One need not be a philosopher of Mill or Feinberg’s stature to recognize that harmful speech posing an “immediately obvious” threat to the “physical safety of students,” presents a far graver threat to the educational mission of schools—thereby warranting less protection—than ambiguously lewd speech that might undercut teaching “the appropriate form of civil discourse” to students. It would make no sense to afford a T-shirt exclaiming “I ♥ pot! (LEGALIZE IT)” protection under Morse while declaring that a bracelet saying “I ♥ boobies! (KEEP A BREAST)” is unprotected under Fraser.... But the injunction addresses only the School District’s ban of the “I ♥ boobies! (KEEP A BREAST)” bracelets. It does not enjoin the School District’s regulation of other types of apparel, such as the “Save the ta-tas” T-shirt or testicular-cancer-awareness apparel bearing the phrase “feelmyballs.org.”
But the majority is not unsympathetic:
School administrators “have a difficult job,” and we are well-aware that the job is not getting any easier. Besides the teaching function, school administrators must deal with students distracted by cell phones in class and poverty at home, parental under- and over-involvement, bullying and sexting, preparing students for standardized testing, and ever-diminishing funding. When they are not focused on
those issues, school administrators must inculcate students with “the shared values of a civilized social order.” Fraser, 478 U.S. at 683; see also McCauley v. Univ. of the V.I., 618 F.3d 232, 243 (3d Cir. 2010) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)) (“Public elementary and high school education is as much about learning how to be a good citizen as it is about multiplication tables and United States history.”).
We do not envy those challenges, which require school administrators “to make numerous difficult decisions about when to place restrictions on speech in our public schools.” And the School District in this case was not unreasonably concerned that permitting “I ♥ boobies! (KEEP A BREAST)” bracelets in this case might require it to permit other messages that were sexually oriented in nature. But schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value. Tinker, 393 U.S. at 511 (“The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues,’ (rather) than through any kind of authoritative selection.’”
Hooray for Brianna and Kayla, and for their able lawyers at the
ACLU of PA as well.