The hottest issue right now in the area of student speech rights is whether schools can prohibit the wearing of pink bracelets to promote breast cancer awareness that are emblazoned with the phrase “I [heart] Boobies.”
In the first case to challenge such a ban, two girls attending an Easton, Pa., middle school — backed by the American Civil Liberties Union and a team of volunteer lawyers from DLA Piper — contend they have the right to engage in silent speech about breast cancer in a way that will be relevant and engaging to their peers.
U.S. District Judge Mary A. McLaughlin has scheduled an injunction hearing for Dec. 16, and any ruling she hands down will set an important precedent that could define the contours of when schools can label speech as “lewd.”
According to the suit, the bracelets are distributed by the Keep A Breast Foundation, a six-year-old nonprofit organization whose mission is to help eradicate breast cancer by educating young people on methods of prevention and early detection.
The suit says the campaign, which has spread nationally, “is designed to reach young people in a language that they will find more fun and less threatening than other discussions about breast cancer.”
When the Easton plaintiffs defied the ban and refused to remove the bracelets, they were hit with in-school suspensions.
School district officials at first defended the ban by contending that the bracelets were causing a disruption at school. But in court papers, the district’s lawyers have now made clear that they intend to argue that the ban was proper because the message printed on the bracelets is “lewd.”
In the context of student speech rights litigation, the defense has shifted from a Tinker defense to a Fraser defense.
Tinker v. Des Moines School District was the 1969 case in which the U.S. Supreme Court held that students have the right to wear black arm bands to protest the war in Vietnam. The Tinker court held that student speech cannot be punished unless it “creates a risk of material and substantial disruption.”
The justices recognized a second category of student speech that may be punished when it held in 1986 in Bethel School District v. Fraser that no proof of a substantial disruption is needed when schools want to punish speech that is offensively lewd and indecent.
The decision by Easton’s defense team to pursue a Fraser defense prompted the plaintiffs’ lawyers to file a new brief that responds to the argument that the term “boobies” is lewd and indecent.
In their brief, defense attorneys John E. Freund III and Keely Espinar of King Spry Herman Freund & Faul in Bethlehem, Pa., argue that the school district “does not have to show that there was a ‘substantial disruption’ because it acted within the purview of its authority in banning the lewd language.”
The ban was proper, the brief says, “due to the inherent vulgarity of the phrase itself in the public middle school context.”
The message printed on the bracelets “has an inherent double entendre of both caring for women and sexual attraction to breasts, particularly due to its slang expression,” the defense team wrote.
As a result, the defense argues, the message “is vulgar and breeds further vulgarity.”
The reactions of other students to the bracelets included “sexual comments made by middle school boys to middle school girls pertaining to the girls’ breasts,” the defense brief says.
The plaintiffs’ First Amendment rights weren’t violated, the defense team argues, because any student remains free to express his or her support of breast cancer awareness in other ways, such as by wearing pink clothing or pink ribbons.
An injunction in favor of the plaintiffs would be harmful, the defense argues, because “if the district is not granted latitude to remove speech from the middle school that is inappropriate for its children in the public middle school, then the district will only be able to abstractly teach ethics, not provide specific examples for students to apply.”
Now the plaintiffs team, in its response brief, argues that the ban must be lifted because the school district cannot satisfy the Fraser test.
Attorneys Carl W. Hittinger, Monique Myatt Galloway and Nathan P. Heller of DLA Piper, along with Mary Catherine Roper and Witold Walczak of the ACLU and University of Pennsylvania law professor Seth Kreimer, argue that the school district is misguided when it contends that students have other avenues of expressing the same message.
Hittinger writes a monthly column for The Legal .
The only questions, the plaintiffs brief says, are whether the ban itself was based on the content of the speech and whether the speech was lewd.
Courts interpreting Fraser , the plaintiffs argue, have held that speech is lewd or vulgar if it “glorifies sexuality, contains elaborate sexual metaphor, or includes expletives.”
The terms “boob” and “boobies” are not vulgar or profane, the plaintiffs team argues, citing dictionary references that label the terms as slang, but not as profane or indecent.
“Both terms regularly appear in major mainstream media outlets, the plaintiffs note, including The New York Times which, the brief says, has used the term “boob” to refer to breasts 30 times since January 2007.
“The frequency with which these terms appear is significant,” the plaintiffs team argues, “because The New York Times maintains a strict vulgarity policy” in its style manual that calls for a “steep threshold” for printing vulgar terms.
Context is also important, the plaintiffs team argues, because the bracelets also include the phrase “keep a breast,” and therefore convey “a serious message of survival, not a sexual one.”
In the more specific context of the two plaintiffs, the message on the bracelets was even more clearly not a lewd one, the brief says, because they wore them “as a tribute to female family members or friends who have been treated for or died from various types of cancer.”
If male students responded by harassing those who wore the bracelets, the plaintiffs team argues, the school should “punish those few male students for their inappropriate behavior, not punish the female students exercising their constitutional right of expression about a serious health subject.”