braceletsIn a 9-5 ruling, the United States Court of Appeals for the Third Circuit in B.H. v. Easton Area School District, ruled that the school district improperly banned the controversial breast cancer awareness bracelets bearing the slogan “I ♥ boobies! (KEEP A BREAST).” The district banned the bracelets, relying on its authority under Bethel School District No. 403 v. Fraser, to restrict vulgar, lewd, profane, or plainly offensive speech. It also relied on Tinker v. Des Moines Independent Community School District, to restrict speech that is reasonably expected to substantially disrupt the school. The students requested an injunction to keep the school from banning the bracelets. The trial court held that the ban violated the students’ right to free speech and issued a preliminary injunction against the ban. The district appealed the decision to the Third Circuit.

The case required the appeals court to find a balance between a student’s right to free speech and a school’s need to control its educational environment. The Third Circuit observed that courts should “defer to a school’s decisions to restrict what a reasonable observer would interpret as lewd, vulgar, profane, or offensive.” According to the appeals court, “[s]chool officials know the age, maturity, and other characteristics of their students far better than judges do.” Nevertheless, courts must decide whether a reasonable observer could interpret student speech as lewd, profane, vulgar, or offensive.

According to the Third Circuit, the Supreme Court in Morse v. Frederick, recognized a new exception to Tinker. The Morse case involved student speech advocating drug use and the Supreme Court upheld restrictions on that speech. In doing so, the Supreme Court recognized that schools may restrict student speech that could “reasonably be regarded as encouraging illegal drug use” and that could not plausibly be interpreted as commenting on a political or social issue. Similarly, here, the appeals court held that schools may categorically restrict ambiguous speech that a reasonable observer could interpret as lewd, vulgar, profane, or offensive, unless the speech could also plausibly be interpreted as commenting on a political or social issue. In this case, because the bracelets were 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.” In addition, the district failed to show that the bracelets threatened to substantially disrupt the school under Tinker. The appeals court, therefore, affirmed the injunction against the bracelet ban.

Ultimately, the appeals court came up with a framework for dealing with these types of student free speech cases: (1) categorical restrictions on student speech are proper when the speech is “plainly lewd,” regardless of whether it comments on political or social issues; (2) speech that does not rise to the level of “plainly lewd” but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of “plainly lewd” and that could be interpreted as political or social speech may not be categorically restricted.

For the full Third Circuit decision, click here: http://www2.ca3.uscourts.gov/opinarch/112067p.pdf

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