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Monday, August 12, 2013

Boobies and attempted coherence on student speech

I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.

The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.

First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.

Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially  speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).

Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.

There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).

The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.

Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.

Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.

Posted by Howard Wasserman on August 12, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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I have always wondered how a court would handle a case in which students cleverly used innocent words or phrases in a foreign language that sound off-color in English.

There must be thousands, like the German "fahrt."

Then there are reverse possibilities, like innocent English words and phrases that could be off-color in Greek or Latin!

Posted by: Jimbino | Aug 12, 2013 10:44:08 AM

It amazes me that schools have suspended kids for wearing breast cancer support bracelets. And how is ta-tas less provocative than boobies?

Posted by: Jim D | Aug 12, 2013 1:39:31 PM

There is a mention of a panel hearing. Under the caption of the case is
Argued on April 10, 2012
Rehearing En Banc Ordered on August 16, 2012
Argued En Banc February 20, 2013

The panel must have deadlocked 1-1-1 on the reasoning, so they asked for an en banc rehearing.

Posted by: Edward Still | Aug 16, 2013 5:32:33 PM

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