Wednesday, August 14, 2013

Emily Gold Waldman on Third Circuit Ruling in "I [heart] boobies" Case

Last week, the Third Circuit issued its en banc opinion in B.H. v. Easton Area School District – aka the “I [heart] boobies” case.  Some quick background: as part of its work to educate thirteen- to thirty-year-old women about breast cancer and encourage them to perform self-examinations, the Keep A Breast Foundation began an initiative entitled “I [heart] boobies.”  Part of the campaign involved selling silicone bracelets emblazoned with “I [heart] Boobies!  (KEEP A BREAST)” and “check yourself!  (KEEP A BREAST)”.  Two middle-school girls purchased the bracelets with their mothers and wore them to school; after a few weeks, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons.  The students (through their mothers) sued and were successful in getting a preliminary injunction from the district court; the Third Circuit then decided to hear the case en banc.

 In a 9-5 split, the Third Circuit affirmed, ruling that the ban on the bracelets violated the First Amendment.  The court rejected the school district’s argument that Fraser’s “plainly offensive” standard justified the ban.  Interestingly, the court applied a gloss from Morse v. Frederick to the Fraser standard.  The court explained that in Morse, Justice Alito – who wrote a separate concurrence and provided the crucial fifth vote – had distinguished between pure pro-drug advocacy and speech “that can plausibly be interpreted as commenting on any political or social issue.”  Building on this, the court articulated a new Fraser framework: (1) plainly lewd speech can always be restricted in schools; (2) speech that isn’t plainly lewd, but that a reasonable observer could interpret as lewd, can be categorically restricted as long as it doesn’t plausibly comment on political or social issues; and (3) speech that isn’t plainly lewd, and that can be plausibly interpreted as commenting on political or social issues, can’t be categorically restricted (although it still can theoretically be restricted under Tinker).  The majority ruled that this speech fell into category (3): “boobies” wasn’t categorically lewd, and the overall message contained political/social commentary on breast cancer awareness.

There’s a lot I like about this opinion.  I’ve long thought that Alito’s emphasis in Morse on the presence of some sort of political/social commentary in student speech provides a helpful dividing line, even though it can get blurry at the margins.  One of the dissents argued that it was inappropriate to let Morse inform the Fraser standard – that each student speech case is an “independent analytical construct.”  But if we are trying to create an overall student speech framework that makes sense, I think it is helpful to think thematically and consider how the cases overlap and inform each other.  Indeed, Alito’s discussion in Morse echoed Fraser’s own emphasis on the absence of political content in the student speech at hand.  And in theory, I think the framework that the Third Circuit articulated makes a lot of sense.

That said, there are some pretty obvious controversies coming down the pike.  The majority went out of its way to hold that “I [heart] Tits” could still be restricted as plainly lewd, but expressly declined to reach the “I [heart] Balls” slogan that is already being used by the Testicular Cancer Awareness Project, which is selling “feelmyballs” bracelets.   

I also can’t help wondering about how this case would have played out if it were a middle-school boy initially wearing the “I [heart] boobies” bracelet.  The court emphasized that “the subjective intent of the speaker” is irrelevant in the Fraser analysis, but it nonetheless set forth the sympathetic facts here: the speakers were girls who had bought the bracelets with their mothers to commemorate friends and relatives who had suffered from breast cancer.  I suspect that not all the middle-school wearers of the “I [heart] boobies” and “feel my balls” bracelets will be coming from the same mindset.    

    --Emily Gold Waldman

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