The Easton Area School District doesn’t want to demonize “boobies,” its lawyer, John Freund, told the U.S. Court of Appeals for the Third Circuit on Tuesday.
A three-judge panel heard arguments in a case brought by two middle school students, backed by the American Civil Liberties Union, who were suspended for wearing breast-cancer awareness bracelets stamped with the phrase, “I [heart] boobies.” Their case was successful in the U.S. District Court for the Eastern District of Pennsylvania.
The school district appealed the trial court’s decision.
It’s a slippery slope from “I [heart] boobies” to more vulgar phrases that advocate for testicular-cancer awareness, Freund said, holding half-a-dozen of the popular rubber bracelets used to advocate for various causes. One said, “Feel my balls,” while another said, “I [heart] cock.”
Everybody understands that the bracelets at issue, distributed by the Keep A Breast Foundation, are part of a discussion about breast cancer, said Mary Catherine Roper, the ACLU attorney who argued the case. Phrases that suggest genital contact are quite different from those encouraging girls to take care of their bodies, she said.
Judge Thomas M. Hardiman focused his questions to her sharply on the issue of the speaker’s intent versus the way in which the language is perceived.
If he were a middle school student, Hardiman said, applying U.S. Supreme Court precedent set in Bethel School District v. Fraser , “it matters not that I had a noble intent” if what he says is lewd.
The opinion in Fraser , decided in 1986 after a high-school student gave a speech laden with sexual innuendo, allows school administrators to ban speech they deem to be lewd or vulgar. Freund agreed with the court that it is the precedent to be met.
“If you’re going to win here, it’s got to be Fraser , not Tinker ,” Hardiman said, referencing the other U.S. Supreme Court decision that is relevant to the case. The 1969 opinion in Tinker v. Des Moines Independent Community School District sets a higher bar than Fraser , ruling that student expression can only be stifled if it is disruptive.
Fraser is the clear choice, Freund said, but “I wouldn’t abandon Tinker .”
Middle school is a “witch’s brew of hormones and curiosity,” Freund said, arguing that it is easy to ignite a firestorm among middle school-age students that would be distracting and disruptive.
“‘Boobies’ is kind of on the margin” of what could be considered vulgar, Freund allowed, but if the bracelets at issue here are permissible in school, there would be no mechanism to ban more vulgar phrases associated with other awareness campaigns.
“While all of them have benevolent objectives, each of them falls into Fraser ?” Judge Joseph A. Greenaway Jr. asked. Freund answered that they would — regardless of their intended message, their language is perceived as lewd.
Looking at the phrase out of context shouldn’t satisfy the lewdness standard in Fraser , Roper argued. To understand it in terms of “how might a porn star use the phrase” is unfair, she said, adding that the context in which the word is used should inform its classification as lewd or not.
“Boobie” is a word that girls use to talk about their bodies with their mothers and grandmothers, she said. “It’s a step above ‘wee wee,’” she told the court.
Language shouldn’t be defined as lewd because it might make pubescent boys blush, Roper said.
The word “boobies” — in certain contexts — could arguably fall within the standard of Fraser , Roper said, answering a question from Greenaway. But, she added, so could any other word.
“So could ‘I heart bananas,’” she said.
The language at issue in Fraser doesn’t actually include any single word that, on its own, would be considered lewd, Roper said. It is, rather, an elaborately designed speech with sexual overtones endorsing another student for office. It begins: “I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm.”
The language on the “I [heart] boobies” bracelet couldn’t be understood to be vulgar, Roper argued, because of its context as part of a clearly marked breast-cancer awareness campaign.
If a school district doesn’t have the latitude to make a judgment call on this bracelet, Hardiman asked, then “how in the world” would it be able to stem the tide of the other bracelets?
Roper maintained that it is the context in which the phrase is used that defines whether or not it is lewd.
U.S. District Judge Mary A. McLaughlin, who ruled on the case in the lower court a year ago, had agreed.
“The phrase ‘I [heart] boobies’ in the context of these bracelets cannot reasonably be deemed to be vulgar,” McLaughlin said in her April 2011 opinion. The words were meant to reach a specific audience, she said, and, “there is, of course, no inherent sexual association with the phrase ‘I [heart] [something].’” She noted the famous “I [heart] NY” tourism slogan, which “suggests affinity, not sexual attraction, to New York.”
McLaughlin held that the phrase did not meet the standards set in Fraser , as they “do not ‘offend for the same reasons that obscenity offends.’”