Thursday, January 23, 2014

Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?

This article first appeared in the January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.

Federal courts are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A BREAST).” The bracelets are part of a breast cancer awareness movement targeted at youth, but some middle and high school administrators are crying foul. A petition for certiorari on this free speech issue is pending at the U.S. Supreme Court.

In its 1969 landmark First Amendment decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that school officials could not bar young people from wearing black armbands to school as a peaceful war protest. In 1986, though, in Bethel School District No. 403 v. Fraser, the high court said that officials could punish student speech that used vivid sexual imagery in a school assembly.

The “boobies” bracelet is a hybrid between the Tinker armband and the Fraser speech: a clothing accessory with a message, which some schools view as double entendre.

So far, courts have not found that the bracelets substantially disrupt the school environment, yet they have reached different results on the bans.

Schools won in Indiana and Wisconsin federal district courts; those decisions were not appealed. Students won at the U.S. Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.

The nine-member Third Circuit majority determined that the “bracelets are not plainly lewd,” looking to Fraser, and comment on “an undeniably important social issue,” applying Justice Samuel Alito Jr.’s concurrence in another student speech case, the Supreme Court’s 2007 Morse v. Frederick.

Five judges on the Third Circuit dissented.

What about “I ♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness slogans? “[S]chool districts would be powerless to address” them.

The dissent also criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on the weight of Alito’s opinion (separate from the split about the bracelets).

Morse is better known as the “BONG HiTS 4 JESUS” case, quoting a banner that students unfurled at a school event. A five-justice majority said that the banner was not protected speech in a school setting, since it promoted illegal drug use.

The Third Circuit dissent reasoned that since Alito joined that majority opinion, his concurrence is dicta. For plurality rulings, the narrowest rationale controls, but Morse was not a plurality. Justice Anthony Kennedy also signed on to Alito’s concurrence.

The Third Circuit majority responded that Alito and Kennedy cast the deciding votes, but on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any political or social issue.” The social commentary language is binding and weighs in favor of allowing breast cancer awareness bracelets, the Third Circuit majority concluded.

A petition for certiorari is pending at the Supreme Court on the Third Circuit decision. Absent extensions, the response is due February 5.

The justices may opt to wait until more federal appellate courts have vetted the bracelet bans or otherwise choose not to disturb the rulings below.

In 2012, the justices declined to review two en banc decisions—also from the Third Circuit—about another free speech battleground for students and schools: online posts. The circuit had sided with students who created fake and vulgar MySpace profiles about their principals, while off school property.