It’s hard to think of a less sexually enticing word for the female breast than boobie. Boobie is the word only little kids use: My son started calling bras “booby-catchers” back when he was in preschool. It’s a word that sounds as benign, bouncy, even snuggly, as a word can sound, and yet it’s been at the heart of one of the most controversial student free speech cases in the country. When and if it gets to the U.S. Supreme Court, even the grim-lipped Justice Anthony Kennedy will probably speak the cheerful little word aloud.
This week, the 3rd Circuit Court of Appeals, based in Philadelphia, ruled in a longstanding case about the appropriateness of silicone bracelets inscribed with “I ♥ boobies!” in schools. The bracelets are sold around the country by the Keep A Breast Foundation to raise awareness for breast cancer research. The foundation says it donates 100 percent of the proceeds from the sales “to the Keep A Breast Foundation, a worldwide non-profit organization." Often, students wear the bracelets to support family members struggling with the disease. But across the country, schools have banned the bracelets as offensive sexual speech, confiscated them, and suspended students for wearing them. In some schools, officials reportedly snip them right off. The constitutional question is whether the bracelets are lewd sexual speech that proves distracting and disruptive in schools, or a political symbol of support for breast cancer awareness.
Two middle school students in Easton, Penn., wore the bracelets (with their parents’ permission) despite a school ban that called them “distracting and demeaning.” The girls were suspended and banned from participating in extracurriculars. In November 2010, the ACLU helped them file a suit claiming the ban violated their right to free speech. In 2011, a federal judge enjoined the school policy. In a 9–5 en banc (meaning every judge on the court heard the appeal) decision issued this week, the federal appellate court agreed that the school ban violates the First Amendment. The school district has 90 days to decide whether to appeal that ruling to the Supreme Court.
The high water mark for student free speech in public schools came in 1969 in Tinker v. Des Moines Independent Community School District, a case upholding the right of students to wear armbands to protest the Vietnam War. One of the low water marks for student speech came in 2007 in Morse v Frederick, in which the Supreme Court sided with a school district that punished a student for a unfurling a sign that read “BONG HiTS 4 JESUS.”
I ♥ boobies cases have cropped up elsewhere in the country, including a student whose bracelet was confiscated in Fort Wayne, Ind., in 2012, a case in Wyoming, and another case in Pennsylvania. In the Easton case, school officials defended the ban under their authority to restrict “vulgar, lewd, profane, or plainly offensive speech” under Bethel School District No. 403 v. Fraser (1986). It also claimed that it could ban the bracelets under Tinker’s loophole allowing schools to restrict speech that is reasonably expected to substantially disrupt school. The majority of the 3rd Circuit disagreed with those claims, in an opinion that may prove terrifically important for student speech rights.
Nobody disagrees that school speech cases have become hopelessly confusing. Justice Clarence Thomas, writing in one such case, wrote that “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they do not ...” That about covers it. But the decision this week out of Pennsylvania tries to clarify the battle lines.
Writing in a 74-page opinion for the majority, 3rd Circuit Judge D. Brooks Smith opens by explaining that Keep A Breast explicitly aims it message at young women (ages 13-30) to destigmatize breast cancer by speaking openly about it in youthful, accessible language. The girls in this case opted to wear their bracelets in solidarity with cancer victims, and they both argued that it has led them and their friends to actually learn about the disease in ways pink ribbons did not. The school announced its ban on the bracelets to coincide with October’s Breast Cancer Awareness activities. The girls refused to remove them. They were suspended and they sued.
The school district argued that the message in the bracelets “conveyed a sexual double entendre that could be harmful and confusing to students of different physical and sexual developmental levels.” The principal took the position that even the word breast was lewd. (She reversed that position later in the litigation). Judge Smith compared this case to the facts of Fraser, in which a high school student nominated a friend for class office, giving a speech in which he memorably said: “I know a man who is firm—he‘s firm in his pants, he‘s firm in his shirt, his character is firm—but most ... of all, his belief in you, the students of Bethel, is firm. ... Jeff Kuhlman [the candidate] is a man who takes his point and pounds it in. If necessary, he‘ll take an issue and nail it to the wall. He doesn‘t attack things in spurts, he drives hard, pushing and pushing until finally—he succeeds. ... Jeff is a man who will go to the very end—even the climax, for each and every one of you. ...”
You get the picture. The speech in Fraser was plainly lewd, and the fact that it was made in the context of a student election didn’t make it “political.” But Judge Smith notes that just because school administrators may find some student speech lewd or vulgar, context still matters. Writes Smith, “It would make no sense to afford a T-shirt exclaiming ‘I ♥ pot! (LEGALIZE IT)’ protection under Morse while declaring that a bracelet saying ‘I ♥ boobies! (KEEP A BREAST)’ is unprotected.”
The majority also rejects the school board’s claim that in protecting the boobies bracelets the court “will encourage students to engage in more egregiously sexualized advocacy campaigns ... including ‘I ♥ Balls!’ apparel for testicular cancer, and ‘I ♥ Va Jay Jays’ apparel for the Human Papillomaviruses.)”
Judge Smith notes that, “Like all slippery-slope arguments, the School District‘s point can be inverted with equal logical force. If schools can categorically regulate terms like boobies even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.”
The dissenters in this case agree that it’s a close call, but side with the school district, finding that “I ♥ boobies! can reasonably be interpreted as inappropriate sexual double entendre. In the middle school context, the phrase can mean both ‘I support breast-cancer-awareness measures’ and ‘I am attracted to female breasts.’ ” The dissenters worry that the bracelets “elicit attention by sexualizing the cause of breast cancer awareness.” Theirs is a nontrivial fear that the very appeal of the bracelets is that they actually make objectification of female breasts OK.
The importance of this decision, the dissent, and the possibility that the Supreme Court may have to someday resolve the issue, lies not just in the nuance around the question of what “I ♥ boobies” really means. The real importance of the new decision lies in the fact that a court is taking the context of student speech—and a student’s framing of that context—very seriously. Perhaps if students are old enough to understand double entendres, they are also old enough to determine which meaning they prefer.