Third Circuit appeals court backs students in 'Boobies' bracelet case

PENNSYLVANIA — Schools cannot censor student speech about political or social issues just because it “has the potential to offend,” a federal circuit court said Monday.

In the en banc opinion issued by the Third Circuit U.S. Court of Appeals, a 9-5 majority found that the “I <3 boobies! (KEEP A BREAST)” breast cancer awareness bracelets worn by two Pennsylvania middle school students were not “lewd” and that the Easton Area School District’s ban on the bracelets violated the students’ First Amendment right to freedom of speech.

The opinion, upholding a 2011 district court’s preliminary injunction to halt the ban, offered a broad defense of student political and social speech, including the bracelets, in a category of “speech of genuine social value.” Schools must be careful when balancing “a student’s right to free speech and a school’s need to control its educational environment,” the court said.

“Schools cannot avoid teaching our citizens-in-training how to appropriately navigate the ‘marketplace of ideas,’” wrote Circuit Court Judge D. Brooks Smith in the majority opinion. “Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value.”

That’s an important precedent to establish so that students feel comfortable expressing their opinions, said Mary Catherine Roper, an attorney with the American Civil Liberties Union of Pennsylvania who represented the two students.

“These girls were not saying anything sexual,” Roper said. “They had no intention of saying anything sexual. The idea that a school could ban speech about such an important health issue simply because someone could misinterpret something in some way, you’d have school administrators able to ban just about anything.

“… That just cannot be the standard that governs when our students are talking about important issues.”

As expected, the court’s opinion relied heavily on its interpretation of the case in the context of the Supreme Court’s decisions in Bethel School District v. Fraser, Morse v. Frederick and to a lesser extent, Tinker v. Des Moines Independent Community School District.

Fraser decision allows schools to restrict “vulgar, lewd, profane, or plainly offensive speech,” while Morse allows speech that promotes illegal drug use to be restricted. Under Tinker, schools can impose restrictions only when administrators have a reasonable fear that the speech will “substantially” disrupt school operations.

But the appeals court said neither Fraser nor Tinker supports the Easton Area School District’s “boobies” bracelet ban that was put into place in the fall of 2010. The ban came about after teachers saw students wearing the bracelets; during Breast Cancer Awareness Month, administrators instructed students that they were no longer allowed.

B.H. and K.M., the two girls who filed the complaint, wore the bracelets in defiance of the ban and were given in-school suspension for one and a half days.

In oral arguments and briefs filed with the court, the school justified its bracelet ban and the girls’ punishment, arguing that the bracelets “conveyed a sexual double entendre” that could be both “harmful and confusing” to middle school students.

The court rejected the argument, finding that the “I <3 boobies!” bracelets didn’t meet the standard for restriction under Fraser.

“The slogan bears no resemblance to Fraser’s ‘pervasive sexual innuendo’ that was ‘plainly offensive to both teachers and students,’” Smith wrote, noting that B.H. and K.M. wore the bracelets for nearly two months before administrators decided they were inappropriate.

During those two months, no significant disruptions occurred, leading the court to conclude that the ban was not justified under Tinker, either.

The appeals court’s split centered on how to interpret the Supreme Court’s most recent case about student First Amendment rights, the Morse ruling from 2007.

Justices Samuel Alito and Anthony Kennedy issued a concurring opinion in Morse, the so-called “Bong hits 4 Jesus” case, in which the Court found no First Amendment violation in punishing a student for a pro-drug banner at a school event. Alito and Kennedy wrote that they could support restrictions on student speech about drug use only when the speech could not “plausibly be interpreted as commenting on any political or social issue.”

In the opinion issued Monday, the majority opinion relied on Alito and Kennedy’s as the “controlling” opinion in the case, while the five-judge minority said Chief Justice John Roberts’ majority opinion in the case was the prevailing legal standard. Roberts’ opinion offered no exceptions for speech about political or social issues.

As a result of the majority’s interpretation of the Morse and Fraser cases, public schools may ban speech that is “plainly” lewd and cannot be interpreted as having a political or social message. But if there is even an ambiguity that the message might address political or social issues, then the speech must be allowed.

Monday’s ruling was somewhat unusual in that it was the result of an en banc hearing, meaning the case went before all the judges in the Third Circuit. It was originally argued before three appellate judges in April 2012; the Student Press Law Center filed a “friend-of-the-court” brief then in favor of the students. A few months later, the court rescheduled arguments the case, this time before the full panel of judges. The three judges who heard the original argument all signed the court’s dissenting opinion.

The ruling is binding in the Third Circuit, which includes Pennsylvania, New Jersey and Delaware.

A spokeswoman for the school district said it had no comment on the ruling.

Contact Gregory by email or at (703) 807-1904 ext. 125.