Parents, school administrators and even the courts often have a difficult time balancing a public school student’s right to free speech and the educational environment. In 2010-11, two Pennsylvania middle school students were suspended after wearing breast-cancer awareness bracelets that said “I ♥ boobies (KEEP A BREAST).” The bracelets had been created to create breast cancer awareness and to make these issues more accessible and less stigmatizing for young women, and soon gained popularity among boys as well — perhaps because of the double entendre and perhaps precisely because authorities said they were banned. The bracelets had been worn by students for two months, apparently without incident, before they were banned. Ironically, the school itself was compelled to use the word “boobies” over the public address system and school television station in order to proscribe the wearing of the bracelets. The district later allowed another message bracelet “Check y♥urself! (Keep a Breast)” because it deemed those words not unduly provocative for middle schoolers.
Third Circuit Judge D. Brooks Smith, writing for a 9-5 majority of the en banc court in B.H. v. Easton Area School District, held that because the bracelets were not plainly lewd and they commented on a “social issue,” they could not be categorically banned. The majority found inapplicable previous U.S. Supreme Court decisions that allowed school administrators to limit plainly lewd or vulgar forms of student speech regardless of the political content. The court then suggested a multilayered analysis by which a school may categorically restrict speech that — although not plainly lewd, vulgar or profane — could be interpreted by a reasonable observer as lewd, vulgar or profane, but only so long as it could not also “plausibly be interpreted as commenting on a political or social issue.”
