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'I Heart Boobies' Campaign Protected Student Speech, Says 3rd Cir

By Gabriella Khorasanee, JD on August 07, 2013 | Last updated on March 21, 2019

Whoever thought that trying to raise breast cancer awareness would result in a three year court battle? In what we're dubbing the Battle of the Boobs, the Third Circuit finally decided whether to uphold a district court's ruling that a school's ban on "I Heart Boobies" bracelets was a violation of students' right to free speech. It only did so after reviewing the matter en banc -- with all fourteen circuit judges voting.

B.H. and K.M., middle school students were banned from wearing "I Heart Boobies" bracelets, as part of a Keep a Breast campaign promoting breast cancer awareness. The students sued the Easton Area School District seeking a preliminary injunction against the bracelet ban, and after an evidentiary hearing, the district court lifted the ban in a preliminary injunction. The school district appealed.

Student Speech Overview

Though First Amendment law has a lot of precedent, there are only four Supreme Court cases addressing student speech. And, of the four, there are only two cases that have any applicability here: Bethel School District No. 403 v. Fraser and Tinker v. Des Moines Independent Community School District.

The Fraser court had to determine whether a school was entitled to curb a students' speech that was offensively lewd and indecent. The Supreme Court held that a school could restrict student speech that is plainly lewd and offensive.

The Tinker court had to address whether students could be banned from wearing black arm bands as political protest in response to the Vietnam War. The court held that a school could not restrict political speech that is not disruptive.

Lewd or Political Speech?

Here, the Third Circuit had to determine the scope of Fraser -- that is, how far it went in allowing schools to restrict lewd, offensive, profane or vulgar speech. The court set about creating a fine line.

The court found the "I Heart Boobies" bracelets were not plainly, or on their face, lewd or offensive. The court went further and said, that even though some people may be offended, the bracelets were not plainly offensive. That, together with the social awareness message of the bracelets, and the lack of disruption in school because of the bracelets, was enough to afford it the protections of the First Amendment.

Practical Implications

School districts definitely have their work cut out for them. With social campaigns coming up with more tongue-in-cheek ways to garner support -- especially among younger people -- schools will have to determine on a case-by-case basis what rises to the level of political speech. To make such a determination schools should look at three things: (1) is the speech plainly lewd on its face? (2) is the speech political? and (3) is the speech disruptive? The answers to these questions will help schools determine whether a certain ban may be constitutional.

It should also be noted that as The Morning Call reports, ACLU attorney Molly Tack-Hooper stated that she is not aware of any other federal circuits addressing this issue. With the lack of disagreement before the circuits, it's unlikely the Supreme Court will take this case for review.

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