The 14 judges on the U.S. Court of Appeals for the Third Circuit who sat en banc to hear arguments on a school speech case demonstrated the difficulty in finding a unified answer to one of the case’s central questions: whether or not the word "boobies" on a breast-cancer-awareness bracelet is sufficiently lewd to be banned from a middle school.
John Freund, representing the Easton Area School District, argued that the sexual double-entendre inherent in the phrase "I ♥ boobies," which was stamped on rubber bracelets distributed by the Keep A Breast Foundation, is distracting in a middle school setting.
"Where’s the double-entendre? Boobies are breasts," said Third Circuit Judge Theodore McKee, drawing a laugh from Freund.
"I’d suggest that your chuckle is less mature than the two or three young kids here," McKee said, referring to the middle school students who brought the case after they were disciplined by school administrators for wearing the bracelets.
Their mission was to remove the stigma attached to breasts and encourage self-examination, McKee said.
After the students, represented by the American Civil Liberties Union, prevailed in the district court, the school district appealed and the first arguments were heard last April. In August, before the initial panel ever issued an opinion, the court announced it would rehear arguments en banc.
The sexual innuendo in the phrase relies on the desire for breasts, Judge D. Brooks Smith asked Freund, who agreed.
Smith then suggested that Freund is looking for the court to grant him an opinion that goes beyond the U.S. Supreme Court’s two landmark opinions governing free speech in schools — Tinker v. Des Moines Independent Community School District from 1969 and Bethel School District v. Fraser from 1986.
Smith said that Freund is actually looking for an extension of Fraser, which allowed school administrators to ban language they deemed to be lewd or vulgar after a high-school student gave a speech laden with sexual innuendo. Here, the standard would move from language that is plainly indecent to language that is ambiguously indecent and would offer no refuge for speech addressing matters of public concern, Smith said.
"We believe there is a level of frank lewdness that schools can prohibit," ACLU lawyer Mary Catherine Roper told the court later, but anything as ambiguous as the bracelets at issue in this case doesn’t count.
The word "boobies" itself is innocuous because it is the word that girls use to talk about their bodies, Roper said. She also pointed to the record in this case, where there was little evidence of actual disruption in the school.
Asked by McKee to weigh in on the question of how school administrators are to determine what qualifies as lewd, Roper said that they need guidance, calling it a "wide open" question. If a word isn’t obviously lewd, administrators need a concrete reason that they believe the community would understand it to be lewd, rather than laudable, she said.
Fraser is relatively thin on guidance for administrators, Roper said, until it is read with the high court’s 2007 opinion in Morse v. Frederick, which held narrowly that administrators can squelch student speech encouraging drug use at school-sponsored events after a high-school student displayed a banner that said "BONG HiTS 4 JESUS" across the street from his school — it went no further than addressing speech related to illegal drug use.
"Morse has no place here," McKee had said earlier, addressing Freund. "It’s either Tinker or Fraser," he said.
McKee reiterated several times over the course of the argument his inability to see a double meaning in the bracelets’ phrase — Judge Dolores Sloviter agreed.
Judge Marjorie Rendell suggested to Freund that by focusing on his contention that the meaning of the phrase was clearly sexual, he would be separating his argument from the lewdness standard in Fraser.
Judge Kent Jordan at one point noted the interest expressed in the bracelets by truck-stop vendors, saying that the Keep A Breast Foundation had chosen the language in order to catch people’s attention. Is it really a surprise that it uses sexual innuendo, Jordan said.
Roper responded that the idea was to appeal to kids by using language that is familiar to them.
To explain to the court the kind of disruption that the school feared the bracelets could bring, Freund said that an English teacher couldn’t get through a lesson involving a line referencing the "breast of the new-fallen snow" in her class without an outburst from students.
That’s exactly the kind of behavior that the plaintiffs in this case were trying to get past, McKee said. "Let’s get a grip here, folks," he said.