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Students Win 'I Love Boobies' Free Speech Appeal

By Aditi Mukherji, JD | Last updated on

"I Love Boobies" that are cancer-free, and the 3rd U.S. Circuit Court of Appeals does too. The court has struck down a Pennsylvania school district's ban on "I Love Boobies! (Keep a Breast)" bracelets as an unconstitutional restriction on students' freedom of speech.

A major takeaway from the case is that the context of the students' speech "fleshes out" the First Amendment's "boobies" boundary.

'Boobies' Background

In 2010, Brianna Hawk and Kayla Martinez, then 13- and 12-year-old students at Easton Area Middle School, were suspended for wearing the bracelets, which are designed by a non-profit to raise breast cancer awareness.

Soon after, the students joined forces with the ACLU and sued the school district. Three grueling years later, the students have claimed a victory for "boobies" and students alike.

The school district argued the bracelets were lewd and vulgar double entendres. But the ACLU argued that context -- breast cancer awareness -- made it different.

In a 9-5 split, an en banc panel of 14 circuit judges (all of the judges on the 3rd Circuit!), the court sided with the ACLU and ruled the bracelets were neither lewd nor disruptive.

Socially or Politically Important Lewd Speech

Speech addressing matters of social or political importance deserves heightened First Amendment protection, the court ruled.

The court pointed out that school officials can't ban students' political speech about drugs and extended the logic to lewd or obscene speech.

A constitutionally protected T-shirt exclaiming "I Love Pot (Legalize It)" and an "I Love Boobies (Keep a Breast)" bracelet are no different, the court concluded.

Plain Old Lewd Speech

Speech addressing matters of social or political importance will be protected, but plainly lewd speech won't be protected in the same way.

Bottom line: The court afforded the students' bracelets First Amendment protection because they were sending the message: "I love boobies -- so get breast cancer screenings" and not "I love boobies -- in the vulgar, sexual way."

The first would be protected, the second would not.

At the end of the day, school officials can bar speech that is lewd or obscene. But speech that might offend a few folks, but also makes a social or political statement, is protected by the First Amendment.

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