Third circuit en banc decision adopts new standard narrowing Fraser
B.H. v. Easton Area Sch. Dist., No. 11-2067 (3d Cir. Aug. 5, 2013)
Abstract: The U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI), sitting en banc (all active judges participating), has ruled in a 9-5 split that a Pennsylvania school district’s ban on displays of a cancer awareness bracelet inscribed with the caption “I ♥ boobies” violated students’ First Amendment free speech rights. The Third Circuit’s majority concluded that the ban could not be justified under either the Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), substantial disruption standard or the Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), vulgar, lewd, profane, or plainly offensive speech standard.
Facts/Issues: B.H. and K.M. attended Easton Area Middle School (EAMS). The students regularly wore bracelets in school that contain the inscription “I ♥ boobies (KEEP A BREAST),” purchased from the Keep a Breast Foundation. After some teachers complained,and anticipating that students would wear the brackets during Breast Cancer Awareness Month (October), EAMS officials banned the bracelets on the ground that the term “boobies” is vulgar and inappropriate for use in a school setting.
B.H. and K.M. wore the bracelets to observe their middle school’s Breast Cancer Awareness Day. School officials responded by issuing them an in-school suspension of one and a half days and forbidding them from attending an upcoming school dance. There was no evidence that the bracelets caused any disruption in the school. There were, however, reports of some male students making comments and/or gestures of a sexual nature referencing the term “boobies.”
The students filed suit in federal district court against Easton Area School District (EASD) alleging that the ban on wearing the bracelets in school violates their First Amendment free speech rights. They sought a preliminary injunction to prevent EASD from enforcing the ban on the bracelets until the court rendered a decision on the merits of their claim.
The district court issued the preliminary injunction. The court concluded that the school could not ban the bracelets under Fraser because the bracelet did not meet the lewd or vulgar speech requirement or under Tinker because there was no forseeable substantial disruption.
Ruling/Rationale: The Third Circuit ‘s majority affirmed the district court’s order granting the preliminary injunction. Like the district court, it found that neither Fraser nor Tinker could be utilized by the school district to justify the ban.
The court focused most of its attention on the question of whether the bracelets could be banned under Fraser, since there was scant evidence that they caused disruption at the school.
The court scrutinized the Supreme Court’s holdings in Fraser and Morse v. Frederick, 551 U.S. 393 (2007) and concluded that the result was a new, modified standard for restricting lewd, vulgar, offensive speech.
Fraser has generally been interpreted to hold that schools may ban student speech which is vulgar, lewd, indecent or plainly offensive. The court concluded, however, based on its reading of Fraser and Morse, that that interpretation is an overly broad and erroneous interpretation of a school’s authority. Rather, the analysis must consider whether the speech, even though lewd and vulgar, could be reasonably interpreted as bearing on a political or social issue. The analysis must also consider whether the speech is “ambiguously” lewd or “plainly” lewd. Fraser’s speech at the school assembly and the “I ♥ boobies” bracelet are examples of ambiguously lewd speech. An example of patently lewd speech would be a student who wants to wear a “F*ck the Draft” jacket to school or recite George Carlin’s 7 “dirty” words.
The addition of these two variables–is the speech patently lewd or merely ambiguously lewd and does it concern a political or social issue–produces three scenarios and three standards:
1. Schools may restrict ambiguously lewd speech only if it cannot plausibly be interpreted as commenting on a social or political matter.
2. Schools may not restrict ambiguously lewd speech that can also plausibly be interpreted as commenting on a social or political issue.
3. Schools may restrict plainly lewd speech regardless of whether it could plausibly be interpreted as social or political commentary.
The court’s holding was the result of its interpretation of Fraser, fortified by the Supreme Court’s decision in Morse. The court found that the opinion in Fraser explicitly stated that Fraser’s speech lacked any political/social value. Therefore, the standard that came out of Fraser was not applicable to lewd speech if it addressed a political or social matter. Further, the Supreme Court in Morse reinforced that reasoning when it “refused to ‘stretch[ ] Fraser’ so far as to ‘encompass any speech that could fit under some definition of offensive’ specifically to protect ‘political and religious speech [that] might be perceived as offensive to some.’ ” (quoting Morse, 551 U.S. at 409). The majority also cited several passages from Morse emphasizing that the students’ banner clearly did not contain any political speech.
The majority had another reason for finding that Morse impacts, and narrows, Fraser:
[In Morse,] Justice Alito’s concurrence, joined by Justice Kennedy, provided the crucial fourth and fifth votes in the five-to-four majority opinion. But the two justices conditioned their votes on the “understanding that (1) [the majority opinion] goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”
Explaining its reliance on Alito’s concurrence, the majority stated that his opinion in Morse forms the “narrowest grounds necessary to secure a majority.” Therefore, “the limitations placed on the majority opinion by Justice Alito’s concurrence are binding on” the Third Circuit.
Applying the Court’s framework to the facts, the majority said that “the School District’s bracelet ban is an open-and-shut case. The “I ♥ boobies! (KEEP A BREAST)” bracelets are not plainly lewd….And as the School District also concedes, a reasonable observer would plausibly interpret the bracelets as part of a national breast-cancer-awareness campaign, an undeniably important social issue.”
Turning to the question of whether EASD could justify its ban under Tinker, the majority concluded that the school district was unable to meet its burden of showing a reasonable forecast of substantial disruption. It found that at the time EASD announced the ban, “it had no more than an ‘undifferentiated fear or remote apprehension of disturbance.’ ”
The majority likewise rejected EASD’s attempt to rely on Tinker’s other prong, i.e., interference with the rights of others. The school district had argued that “the bracelets invade other students’ Title IX rights to be free from sexual harassment.” In response, the majority stated: “Even assuming that protecting students from harassment under Title IX would satisfy Tinker’s rights-of-others prong, the School District does not explain why the bracelets would breed an environment of pervasive and severe harassment.”
The dissent rejected the majority’s insistence that Morse modified the standard articulated Fraser. The dissent argued that the appellate opinions addressing Morse, Fraser, and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) treat them as independent analytical constructs that permit schools to regulate certain types of speech that would otherwise be protected under Tinker. The dissent attacked the majority’s conclusions that Justice Alito‘s concurrence in Morse is the controlling opinion in that case and that Morse modified the Supreme Court’s decision in Fraser. In regard to the first premise, it pointed that eight other federal appellate circuits disagreed. The dissent argued that the majority’s reasoning was based on a misunderstanding of the Supreme Court’s “narrowest grounds” doctrine.
The dissent believed that the district court had incorrectly asked “whether it was reasonable to view the bracelets as an innocuous expression of breast cancer awareness?” Instead, the District Court should have asked “whether the school officials‘ interpretation of the bracelets—i.e., as expressing sexual attraction to breasts—was reasonable?” The dissent concluded that “I ♥ boobies!” can reasonably be interpreted as an inappropriate sexual double entendre.
The dissent found that in the middle school context, the phrase can mean both “I support breast-cancer-awareness measures” and “I am attracted to female breasts.” It concluded that the school’s ban was reasonable and constitutional under Fraser. The dissent also contended that under the majority’s ruling, “schools would be obliged to permit more egregiously sexual advocacy messages.”
B.H. v. Easton Area Sch. Dist., No. 11-2067 (3d Cir. Aug. 5, 2013)
[Editor's Note: In August 2012, Legal Clips summarized an Associated Press (AP) article in The Washington Post reporting on the Third Circuit decision to conduct an en banc review of the district court's decision enjoining EASD from banning breast-cancer fundraising bracelets that say “I ♥ boobies!”.]