B.H. Ex Rel. Hawk v. Easton Area School District
2013 WL 3970093, 2013 U.S. App. LEXIS 16087, 725 F.3d 293 (2013)
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Rule of Law:
A school may not categorically ban student speech that, while potentially lewd or vulgar, can also be plausibly interpreted as commenting on a political or social issue, unless the speech is plainly lewd. Such speech can only be restricted if it is reasonably forecast to cause a substantial disruption under the standard set in Tinker v. Des Moines.
Facts:
- Two middle-school students, B.H. and K.M., purchased and wore silicone bracelets with the slogan "I ♥ boobies! (KEEP A BREAST)".
- The bracelets were part of a national campaign by the Keep A Breast Foundation to raise awareness and encourage conversations about breast cancer among young people.
- B.H. and K.M. wore the bracelets to promote awareness and honor friends and relatives who had suffered from the disease.
- After students had worn the bracelets for several weeks without any reported disruptions, school administrators announced a ban on all apparel containing the word "boobies."
- On the school's designated Breast Cancer Awareness Day, B.H. and K.M. wore their bracelets to school in defiance of the new rule.
- When instructed by a school security guard to remove the bracelets, B.H. and K.M. refused, citing their free speech rights.
- As a result of their refusal, the school disciplined both students with one-and-a-half days of in-school suspension and forbade them from attending the Winter Ball.
- The Easton Area School District subsequently instituted a district-wide ban on the bracelets.
Procedural Posture:
- B.H. and K.M., through their mothers, sued the Easton Area School District in the U.S. District Court for the Eastern District of Pennsylvania under 42 U.S.C. § 1983.
- The students sought a preliminary injunction to prevent the school from enforcing the bracelet ban.
- After conducting an evidentiary hearing, the District Court granted the preliminary injunction, finding the students were likely to succeed on the merits of their First Amendment claim.
- The Easton Area School District (appellant) appealed the District Court's grant of the preliminary injunction to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does a public middle school's ban on "I ♥ boobies! (KEEP A BREAST)" bracelets, worn as part of a national breast cancer awareness campaign, violate the students' First Amendment right to free speech?
Opinions:
Majority - Smith, J.
Yes. A public middle school's ban on the bracelets violates the students' First Amendment rights because the speech, while potentially viewed as lewd, comments on a social issue and does not cause a substantial disruption. The court established a new framework for analyzing speech under Bethel v. Fraser, holding that speech which is not plainly lewd but could plausibly be interpreted as commenting on a political or social issue may not be categorically banned. The court reasoned that Justice Alito's controlling concurrence in Morse v. Frederick protects such speech from categorical restriction. Because the bracelets comment on the social issue of breast cancer awareness, they are protected unless they cause a substantial disruption under Tinker v. Des Moines, which the school failed to demonstrate.
Dissenting - Hardiman, J.
No. The school's ban does not violate the students' First Amendment rights because it was an objectively reasonable restriction of speech that could be interpreted as lewd and containing sexual innuendo in a middle school context. The majority erred by using Justice Alito's concurrence in Morse, a drug-speech case, to improperly modify the well-established standard for lewd speech from Fraser. Fraser grants schools the authority to restrict speech with sexual double entendres, and courts should defer to the school administrators' reasonable judgment that the term 'boobies' was inappropriate for middle school students, regardless of its connection to a social cause.
Dissenting - Greenaway, Jr., J.
No. The school's ban does not violate the students' First Amendment rights because the majority's new test is unworkable and provides no clear guidance for school districts. The test creates an amorphous standard by failing to define the line between ambiguously and plainly lewd speech and by creating a 'political or social issue' exception that is so broad it effectively swallows the rule. This leaves school districts powerless to regulate inappropriate student speech, as nearly any slogan can be tied to some social cause, undermining their ability to maintain an appropriate educational environment.
Analysis:
This decision significantly refines the Fraser standard for regulating lewd student speech by incorporating the "political or social issue" limitation derived from Morse v. Frederick. It establishes a new, more speech-protective framework, requiring schools to tolerate student expression that is not "plainly lewd" if it carries a plausible social message, unless it causes a substantial disruption under Tinker. The ruling curtails school authority to ban speech based solely on its use of sophomoric or mildly offensive terms when that speech is connected to a recognized social cause. This precedent will force lower courts and school districts to distinguish between plainly lewd speech, which can be banned, and ambiguously lewd speech with a social message, which generally cannot.
