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.”
The majority then cobbled together a broader instruction from the majority opinion and Justice Samuel Alito’s concurrence in Morse v. Frederick, 551 U.S. 393 (2007), concluding that public schools cannot ban ambiguously lewd speech that plausibly pertains to a social or political issue. The majority made clear that the injunction against banning “I ♥ boobies” addresses only that message. “Whether the injunction stays or goes, the School District will have to continue to make individualized assessments of whether it may restrict student speech consistent with the First Amendment.”
There were two dissenting opinions. Circuit Judge Thomas Hardiman warned that the majority’s interpretation of Morse was flawed and that its opinion “vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent or plainly offensive.” Circuit Judge Joseph Greenaway Jr. said the majority opinion only stokes confusion on the issue, because it “inadvertently re-injects the students’ intent into the fray by mandating an analysis of whether a political or social issue is addressed by the speech.”
We strongly agree with the result reached by the majority. As emphasized in the seminal case on student speech, Tinker v. Des Moines Independent Community School District, a prohibition against expression, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First Amendment. As the Third Circuit has previously noted, Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance. In this case, the fact that these bracelets went unnoticed for two months, and that there was no evidence that they caused any disruption of school operations (beyond the adolescent snickering which is endemic to the schoolyard), seems conclusive that the school has not met its evidentiary burden under Tinker. We do think, however, that it might have been sufficient to leave the analysis there, and Greenaway has a valid point that excessive inquiry into whether speech addresses “a political or social issue” is unnecessary and potentially confusing.
It certainly isn’t easy being a school administrator or parent these days, with the wide array of near-pornographic materials available to middle school students on cable television and the Internet. But banning an important social message meant to be accessible to youngsters because of the possibility that immature minds might giggle at its other meaning is still beyond the constitutional pale.