The world will have to wait more than half a year to learn whether the phrase “I ? Boobies” on a cancer-awareness wristband is constitutionally protected speech in a public middle school.
In an unusual move, the Third Circuit U.S. Court of Appeals has set the case of B.H. v. Easton Area School District for re-argument before the entire complement of judges in the Philadelphia-based circuit. The hearing was calendared for Feb. 20, 2013.
The move is unorthodox because the case was argued — but not yet decided — in front of a panel of three circuit judges in April. Normally, a case is not heard by the full court until a panel has issued its ruling — and even then, a so-called “en banc” hearing is exceptionally rare.
The case involves two Pennsylvania middle-school students who were placed on in-school suspension after wearing the cancer-awareness bracelets in violation of a district ban. The district claims the phrase is “lewd” and “vulgar,” and therefore is unprotected by the First Amendment on the premises of a public school.
The bracelets are distributed by a national cancer charity, Keep A Breast Foundation, and their eye-catching slogan has been a source of repeated litigation as schools seek to prohibit students from displaying the phrase.
In an April 2011 ruling, a U.S. district judge sided with the Pennsylvania students and found the message to be constitutionally protected. The court ruled that a reference to breasts was not vulgar or lewd when used in the context of breast cancer. The school district appealed.
During oral arguments in April of this year, members of the three-judge appellate panel expressed skepticism that a school could be constrained from banning a word that some adolescents might interpret as sexually suggestive.
While the panel seemed inclined to reverse the district court’s ruling in favor of the students, the Third Circuit as a whole has been one of the most receptive to the First Amendment claims of young people. The fact that the case was taken up by the full circuit may indicate — and no reason was announced, so this is only an inference — that a draft opinion from the panel reached other circuit judges, who disagreed strongly enough to seek a rehearing.
The Third Circuit sets binding legal precedent for federal district courts in Pennsylvania, New Jersey and Delaware.