Public schools don't have free rein to ban speech that isn't necessarily offensive, especially if that speech pertains to a social or political issue, the U.S. Court of Appeals for the Third Circuit has ruled in a tellingly split en banc opinion.
The case was brought by two Easton, Pa., middle school students who were suspended after wearing breast-cancer awareness bracelets that said "I ♥ boobies." They were represented by lawyers from the American Civil Liberties Union.
"Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser," Judge D. Brooks Smith wrote on behalf of the nine-judge majority, referring to the U.S. Supreme Court's 1986 opinion in Bethel School District v. Fraser, which held that school administrators can limit lewd or vulgar forms of student speech.
"The scope of a school's authority to restrict lewd, vulgar, profane, or plainly offensive speech under Fraser is a novel question left open by the Supreme Court, and one which we must now resolve," Smith said.
The Third Circuit decided that speech that is not obviously lewd and speaks to a larger social issue can't be banned by school administrators.
Five judges of the Third Circuit disagreed — Judge Thomas Hardiman and Judge Joseph Greenaway Jr. each wrote a dissent to the 74-page majority opinion.
Both of those judges, along with Senior Judge Morton Greenberg, who joined the dissent, sat on the original three-judge panel that heard the first arguments in April 2012. Five months after that, in an unusual move, the court announced that it would rehear the case en banc.
"On rare occasions, you see something like what happened here," said Nancy Winkelman of Schnader Harrison Segal & Lewis, who practices in the court and clerked for Judge Dolores Sloviter.
Any precedential opinion is circulated among the judges of the full court before it is issued and, on very rare occasions, a majority of the judges can vote to rehear a case en banc.
"Clearly what happened is they wrote an opinion that is similar to the dissent," Winkelman said of the original panel's opinion, which was never issued, and it generated enough concern in the court that that would be the law of the Third Circuit that a majority of the active judges wanted to rehear the case.
Senior judges don't participate in the en banc rehearings unless they sat on the original three-judge panel, Winkelman explained, as was the case with Greenberg.
"The majority's approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive," Hardiman wrote.
In clarifying the scope of Fraser — which was decided in 1986 after a high-school student gave a speech laden with sexual innuendo and allows school administrators to ban speech they deem to be lewd or vulgar — the majority in this opinion ruled that the school's right to ban speech that could be reasonably construed as lewd or vulgar doesn't extend to possibly offensive language that comments on social or political issues, like breast-cancer awareness.
The majority's opinion extended Fraser to reach speech that is ambiguously lewd, but halted that extension when the speech touches the political or social realm.
"A school's leeway to categorically restrict ambiguously lewd speech, however, ends when that speech could also plausibly be interpreted as expressing a view on a political or social issue," Smith said.
"If you're going to win here, it's got to be Fraser, not Tinker," Hardiman said during the case's first arguments, referencing the other U.S. Supreme Court decision that is relevant to the case, and that is where the focus of the case remained. The 1969 opinion in Tinker v. Des Moines Independent Community School District, which involved students' objections to the Vietnam War, sets a higher bar than Fraser, holding that student expression can only be stifled if it is disruptive.
John Freund of King, Spry, Herman, Freund & Faul represented the Easton Area School District and said that he was disappointed, but not surprised. He cited several recent cases from the Third Circuit in which the court came down on the side of free speech rather than district authority.
The court failed to give consideration to the practical impact of its decision, he said, and didn't consider the sexual double entendre in the phrase "I ♥ boobies."
In that way, the court "turned established jurisprudence" on its head in order "to pay homage to a socially sacred cause," Freund said.
Mary Catherine Roper of the ACLU noted recent case history from the Third Circuit and said that the court has always taken student-speech cases very seriously, concluding, "We're very fortunate."
Of this case, she said, the "intention was to clarify the Fraser standard. I think this does make it clearer."