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Finally closing the book on a story I've been reporting since April 2011, the Supreme Court of the United States this morning denied the Easton School District's petition for certiorari and thus let stand the Third Circuit's en banc ruling that two middle-school girls had the First Amendment right to wear "I ♥ Boobies!" bracelets at school to promote breast cancer awareness.

A Supreme Court denial of certiorari is not a ruling on the merits of this case, though it may suggest the Court (a) isn't yet interested in going down the "Bong Hits 4 Jesus" path again (where only the absurdist nature of the speech kept two justices on board for the anti-student majority), or (b) at least didn't believe this case presented the right fact pattern for doing so. For what it's worth, the Third Circuit majority emerged with the following test when it comes to kinda-dirty student speech (and this was category (2)):

(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 this speech, the Court below ruled, was not plainly lewd:
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....

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.

Congratulations to now-high schoolers Kayla Martinez and Brianna Hawk, and their able lawyers at the ACLU of Pennsylvania as well:
“I am happy we won this case, because it’s important that students have the right to stand up for a cause and try to make a difference. We just wanted to raise awareness about breast cancer,” said Briana Hawk, who was in eighth grade at Easton Area Middle School when she was suspended, along with seventh grader Kayla Martinez, for wearing the rubber bracelets on the school's Breast Cancer Awareness Day in the fall of 2010....

Plaintiff Kayla Martinez said, “This whole experience has taught me that speaking up about issues that really matter to young people really makes a difference, even if you're only in seventh grade.”

Originally posted to Adam B on Mon Mar 10, 2014 at 09:20 AM PDT.

Also republished by Pink Clubhouse and Daily Kos.

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