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Supreme Court Leaves Speech-Protective Appellate Ruling Intact in ‘I [Heart] Boobies’ Case

By March 10, 2014

Today, the Supreme Court announced that it would not hear an appeal of Easton Area School District v. B.H., in which the United States Court of Appeals for the Third Circuit ruled that a public Pennsylvania grade school violated the First Amendment by punishing two female students for wearing bracelets that read “I [heart] boobies!” on them. The bracelets are meant to raise awareness of breast cancer, but the school district claimed that they were lewd and inappropriate for the educational environment. The American Civil Liberties Union of Pennsylvania helped students Brianna Hawk and Kayla Martinez file a First Amendment lawsuit after refusing to remove the bracelets earned them in-school suspensions for a day and a half.

In its August 2013 ruling, issued after an en banc hearing, the Third Circuit ruled 9 to 5 that the First Amendment prohibited punishing the students, as the bracelets did not fall into the exception for student speech articulated by the Supreme Court’s rulings in Bethel School District v. Fraser (allowing for prohibition of “offensively lewd and indecent speech” in the grade school context). The Third Circuit explained that because the bracelets were not “plainly lewd” and could be interpreted as social or political commentary, wearing them constituted protected expression:

The School District defends the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech under Fraser. As to the novel question of Fraser‘s scope, jurists seem to agree on one thing: “[t]he mode of analysis employed in Fraser is not entirely clear.” Morse, 551 U.S. at 404, 127 S.Ct. 2618. On this point, we think the Supreme Court’s student-speech cases are more consistent than they may first appear. As we explain, Fraser involved only plainly lewd speech. We hold that, under Fraser, a school may also categorically restrict speech that — although not plainly lewd, vulgar, or profane — could be interpreted by a reasonable observer as lewd, vulgar, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue. Because the “I heart boobies! (KEEP A BREAST)” bracelets are not plainly lewd and express support for a national breast-cancer-awareness campaign — unquestionably an important social issue — they may not be categorically restricted under Fraser. [Internal citations omitted.]

ACLU of Pennsylvania Executive Director Reggie Shuford explained why the Supreme Court’s decision not to revisit the Third Circuit’s ruling is good news for students:

The First Amendment protects schools as a space where students are free to discuss important issues like breast cancer and talk about their bodies in positive terms. … The court’s decision today is an important reminder to school administrators that they can’t punish students for speaking out just because their speech might be uncomfortable or misunderstood.

While this case deals with middle school students, who may be subject to some limitations on expression that would be unconstitutional as applied to college and university students, FIRE still sees courts cite secondary school cases in justifying censorship of students at institutions of higher education. We also see universities punish speakers for potentially misunderstood comments or expression that some consider lewd or inappropriate. A reversal by the Supreme Court in this case, therefore, could have had negative repercussions for students of all ages. Unfortunately, though, a federal district court in Indiana ruled last August that a high school’s ban on the same bracelets was constitutional, meaning that the right to speak about certain body parts isn’t safe for secondary school students nationwide quite yet.

In the ACLU of Pennsylvania’s press release today, Martinez said, “This whole experience has taught me that speaking up about issues that really matter to young people really makes a difference, even if you’re only in seventh grade.” We at FIRE hope that the case inspires other students to fight for their free speech rights, too. As always, if you’re a college or university student or faculty member who has had your rights violated, FIRE stands by ready to help.

Read the Third Circuit’s decision in Easton Area School District v. B.H. on the ACLU of Pennsylvania’s website, and other relevant documents on SCOTUSblog’s case page.