This month, two courts issued dramatically different opinions about whether school districts can prohibit breast cancer awareness bracelets reading “I ♡ boobies” without running afoul of students’ First Amendment free speech rights. In both cases, the school districts argued that they could prohibit the speech in the school context based on the 1986 Supreme Court case Bethel School District v. Fraser. In Fraser, the Court upheld the suspension of a high school student for making a speech full of sexual innuendos during a school assembly. The Fraser Court held that the discipline did not violate the student’s First Amendment rights, and that opinion has been interpreted to authorize school discipline of lewd, vulgar, obscene, indecent, or patently offensive speech in the school environment.
In the first “I ♡ boobies” case, B.H. v. Easton Area School District, the Third Circuit Court of Appeals, the highest federal appellate court for Pennsylvania, New Jersey, Delaware, and the Virgin Islands, held that Fraser was not so broad to allow a ban on “I ? boobies” bracelets at school, because the bracelets were only “ambiguously lewd,” not “plainly lewd,” and because the bracelets were commentary on a social or political issue (breast cancer awareness). The Third Circuit’s decision was based on a novel reading of a concurring opinion in another Supreme Court school speech decision from 2007, Morse v. Frederick. In a concurring opinion in Morse, Justice Alito, joined by Justice Kennedy, said that the Court’s opinion in Morse “provid[ed] no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue . . . .” The Third Circuit determined that Alito’s concurring opinion was the controlling opinion in Morse, and then applied the limitation from that opinion to the Fraser case. The Third Circuit found that although schools may limit unambiguously lewd speech, the “I ♡ boobies” bracelets were subject to an interpretation that was not lewd. In the case of ambiguous speech such as the “I ? boobies” bracelets, the court said, schools cannot limit speech that plausibly can be interpreted as commenting on a social or political issue, even if it is arguably lewd. The case has garnered national media attention, including contradictory op-eds in the Washington Post and the Los Angeles Times.
In the second “I ♡ boobies” case, J.A. v. Fort Wayne Community Schools, a federal trial court in Indiana found that a school could prevent a student from wearing an “I ? boobies” bracelet to school, because it was objectively reasonable for the school to determine that the bracelet was lewd or indecent in the school environment. The Indiana court determined that it was irrelevant whether the bracelet commented on a social or political issue, and specifically disagreed with the Third Circuit’s B.H. decision. The Indiana court noted that there was no precedent for limiting Fraser the way that the Third Circuit had done, and that courts in eight other federal appellate jurisdictions have held that the Alito opinion in Morse was not the controlling opinion. Only the Fifth Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas, agreed with the Third Circuit that the Alito concurrence was controlling in Morse.
After these conflicting decisions, school leaders are justified in being confused as to when they can limit or discipline students for speech that they reasonably determine is lewd, vulgar, obscene, indecent, or patently offensive but that also can be interpreted as commenting on political or social issues. As the Los Angeles Times op-ed suggests, even speech that has a clear social or political message may, based on its content, lead to mayhem in the school environment if it is conveyed in an inappropriate manner. Must school leaders stand idly by while such speech is expressed in their schools?
School districts in the jurisdiction of the Third Circuit (Delaware, New Jersey, and Pennsylvania) are governed by the Third Circuit’s decision, and so should be the most careful when addressing lewd or patently offensive speech that has a social message. And school districts in the jurisdiction of the Fifth Circuit (Louisiana, Mississippi, and Texas) should be aware that the Third Circuit’s decision is based on a reading of Morse that has also been adopted by their highest federal court. But even in those courts, other facts may make the speech in question “plainly lewd” or otherwise justify limiting the speech based on Bethel v. Fraser. And other Supreme Court precedents may allow limits on lewd and offensive speech if that speech also encourages illegal activity (Morse) or causes or could potentially cause a risk of a material or substantial disruption to the educational environment or invasion of the rights of others (Tinker v. Des Moines Independent Community School District).
In other jurisdictions, however, including Illinois, school districts are not bound by the Third Circuit’s decision. And the Third Circuit’s decision does seem to be a marked departure of Supreme Court precedent. That means the risk that other courts will adopt the Third Circuit’s standard is limited. This is especially true in light of the persuasive reasoning from the Indiana court in J.A.
In light of the uncertainty in this area of law, the one thing that is clear is that school leaders should confer with legal counsel before banning or disciplining student speech based on political or social issues, no matter what the content.