Booby Bracelet Rights Upheld by 3rd Circuit

PHILADELPHIA (CN) - Breast cancer awareness bracelets that proclaim "I [Heart] Boobies!" are not "plainly lewd" so as to warrant being banned from a Pennsylvania school district, the full 3rd Circuit ruled.

"Once again, we are asked to find the balance between a student's right to free speech and a school's need to control its educational environment," Judge D. Brooks Smith wrote for a nine-member majority of the en banc federal appeals court. "Because the 'I [Heart] boobies! (KEEP A BREAST)' bracelets are not plainly lewd and express support for a national breast-cancer-awareness campaign - unquestionably an important social issue - they may not be categorically restricted."

Two Easton Area Middle School students were suspended in November 2010 and banned from a school dance after wearing the bracelets to school on Breast Cancer Awareness Day. They are named as B.H. and K.M., respectively, in the court record, but have been identified by the ACLU as Kayla Martinez and Brianna Hawk.

The Easton Area School District, which declined to comment Tuesday on the ruling, is one of several school districts across the country to ban the bracelets, which are given out by the Carlsbad, Ca.-based Keep a Breast Foundation.

After the girls' suspension, the American Civil Liberties Union filed a federal complaint in Philadelphia on behalf of the teenagers.

Both girls said in the lawsuit that they wore the bracelets to honor family members who died of the disease, and that the ban violated their rights to free speech.

U.S. District Judge Mary McLaughlin gave the students a preliminary injunction in April 2011, finding that the bracelets "cannot reasonably be considered lewd or vulgar under the standard of Fraser."

In Bethel School District v. Fraser, the Supreme Court supported a high school's suspension of a student who nominated a peer for student government in a speech rife with sexual themes and double entendres.

A three-judge panel of the 3rd Circuit heard oral arguments on the ensuing appeal in April 2012, but it ordered a rehearing en banc some months later and the parties argued before the full 14-member court this past February.

After the court affirmed the injunction by a 9-5 vote Monday, the ACLU celebrated the big free-speech win.

"The First Amendment protects schools as a space where students are free to discuss important issues like breast cancer and talk about their bodies in positive terms," ACLU of Pennsylvania executive director Reggie Shuford said in a statement. "The court's decision ... is an important reminder to school administrators that they can't punish students for speaking out just because their speech might be uncomfortable or misunderstood."

All five dissenting judges signed two dissents against the majority ruling.

"The 'I [Heart] boobies! (KEEP A BREAST)' bracelets would seem to fall into a gray area between speech that is plainly lewd and merely indecorous," according to the first dissent from Judge Thomas Hardiman. "Because I think it objectively reasonable to interpret the bracelets, in the middle school contacts, as inappropriate sexual innuendo and double entendre, I would reverse the judgment of the district court and vacate the preliminary."

Judge Joseph Greenway Jr. added in the second dissent: "The majority's test leaves school districts essentially powerless to exercise any discretion and extends the First Amendment's protection to a breadth that knows no bounds. As such, how will similarly situated school districts apply this amorphous test going forward."

The "I [Heart] Boobies" campaign is a national campaign designed to reach young people and raise awareness about breast cancer.

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