725 F.3d 293 (3rd Cir. 2013), 11-2067, B.H. v. Easton Area School District

Docket Nº:11-2067
Citation:725 F.3d 293
Opinion Judge:SMITH, Circuit Judge.
Party Name:B.H., A MINOR, BY AND THROUGH HER MOTHER; JENNIFER HAWK; K.M., A MINOR BY AND THROUGH HER MOTHER; AMY MCDONALD-MARTINEZ v. EASTON AREA SCHOOL DISTRICT, Appellant
Attorney:Keely J. Collins, John E. Freund, III [ARGUED], Jeffrey T. Tucker, King, Spry, Herman, Freund & Faul, Bethlehem, PA, Counsel for Appellant. Seth F. Kreimer, University of Pennsylvania School of Law, Philadelphia, PA; Mary Catherine Roper [ARGUED], American Civil Liberties Union of Pennsylvania, P...
Judge Panel:Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, and GREENBERG, Circuit Judges. HARDIMAN, Circuit Judge, dissenting with whom CHAGARES, JORDAN, GREENAWAY, JR., and GREENBERG, join. GREENAWAY, JR., Circuit ...
Case Date:August 05, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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725 F.3d 293 (3rd Cir. 2013)

B.H., A MINOR, BY AND THROUGH HER MOTHER; JENNIFER HAWK; K.M., A MINOR BY AND THROUGH HER MOTHER; AMY MCDONALD-MARTINEZ

v.

EASTON AREA SCHOOL DISTRICT, Appellant

No. 11-2067

United States Court of Appeals, Third Circuit

August 5, 2013

Argued April 10, 2012, Rehearing En Banc Ordered August 16, 2012, Argued En Banc February 20, 2013

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On Appeal from the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 5-10-cv-06283). District Judge: Honorable Mary A. McLaughlin.

Keely J. Collins, John E. Freund, III [ARGUED], Jeffrey T. Tucker, King, Spry, Herman, Freund & Faul, Bethlehem, PA, Counsel for Appellant.

Seth F. Kreimer, University of Pennsylvania School of Law, Philadelphia, PA; Mary Catherine Roper [ARGUED], American Civil Liberties Union of Pennsylvania, Philadelphia, PA; Molly M. Tack-Hooper, Berger & Montague, Philadelphia, PA; Witold J. Walczak, American Civil Liberties Union, Pittsburgh, PA, Counsel for Appellees.

Sean A. Fields, Pennsylvania School Boards Association, Mechanicsburg, PA, Counsel for Amicus Appellant.

Wilson M. Brown, III, Kathryn E. Deal, Drinker, Biddle & Reath, Philadelphia, PA; Rory Wicks, Gary L. Sirota, Encinitas, CA; Amy R. Arroyo, Carlsbad, CA; Wayne Pollock, Dechert LLP, Philadelphia, PA; Frank D. LoMonte, Laura Napoli, Student Press Law Center, Arlington, VA; Terry L. Fromson, Carol E. Tracey, Women's Law Project, Philadelphia, PA; David L. Cohen, Philadelphia, PA, Counsel for Amici Appellees.

Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, and GREENBERG, Circuit Judges. HARDIMAN, Circuit Judge, dissenting with whom CHAGARES, JORDAN, GREENAWAY, JR., and GREENBERG, join. GREENAWAY, JR., Circuit Judge, dissenting, with whom CHAGARES, JORDAN, HARDIMAN and GREENBERG, join.

OPINION

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SMITH, Circuit Judge.

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. In this case, two middle-school students purchased bracelets bearing the slogan " I [hearts] boobies!

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(KEEP A BREAST)" as part of a nationally recognized breast-cancer-awareness campaign. The Easton Area School District banned the bracelets, relying on its authority under Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), to restrict vulgar, lewd, profane, or plainly offensive speech, and its authority under Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), to restrict speech that is reasonably expected to substantially disrupt the school. The District Court held that the ban violated the students' rights to free speech and issued a preliminary injunction against the ban.

We agree with the District Court that neither Fraser nor Tinker can sustain the bracelet ban. The scope of a school's authority to restrict lewd, vulgar, profane, or plainly offensive speech under Fraser is a novel question left open by the Supreme Court, and one which we must now resolve. We hold that Fraser, as modified by the Supreme Court's later reasoning in Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), sets up the following framework: (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser . The School District has also failed to show that the bracelets threatened to substantially disrupt the school under Tinker . We will therefore affirm the District Court.

I.

A. Factual background

As a " leading youth focused global breast cancer organization," the Keep A Breast Foundation tries to educate thirteen- to thirty-year-old women about breast cancer. Br. of Amicus Curiae KABF at 13. To that end, it often partners with other merchants to co-brand products that raise awareness. And because it believes that young women's " negative body image[s]" seriously inhibit their awareness of breast cancer, the Foundation's products often " seek[] to reduce the stigma by speaking to young people in a voice they can relate to." Id. at 14-15. If young women see such awareness projects and products as cool and trendy, the thinking goes, then they will be more willing to talk about breast cancer openly.

To " start a conversation about that taboo in a light-hearted way" and to break down inhibitions keeping young women from performing self-examinations, the Foundation began its " I [hearts] Boobies!" initiative. Id. at 20-21. Part of the campaign included selling silicone bracelets of assorted colors emblazoned with " I [hearts] Boobies! (KEEP A BREAST)" and " check y[hearts] urself! (KEEP A BREAST)." Id. at 21-22. The Foundation's website address (www.keep-a-breast.org) and motto (" art. education. awareness. action." ) appear on the inside of the bracelet. Id.

As intended, the " I [hearts] Boobies" initiative was a hit with young women, quickly becoming one of the Foundation's " most successful and high profile educational campaigns." Id. at 20-21. Two of the young women drawn to the bracelets were middle-school students B.H. and K.M. They

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purchased the bracelets with their mothers before the 2010-2011 school year--B.H. because she saw " a lot of [her] friends wearing" the bracelets and wanted to learn about them, and K.M. because of the bracelet's popularity and awareness message. App. 72, 92, 106, 442.

But the bracelets were more than just a new fashion trend. K.M.'s purchase prompted her to become educated about breast cancer in young women. The girls wore their bracelets both to commemorate friends and relatives who had suffered from breast cancer and to promote awareness among their friends. Indeed, their bracelets started conversations about breast cancer and did so far more effectively than the more-traditional pink ribbon. App. 73-74. That made sense to B.H., who observed that " no one really notices" the pink ribbon, whereas the " bracelets are new and . . . more appealing to teenagers." App. 74.

B.H., K.M., and three other students wore the " I [hearts] boobies! (KEEP A BREAST)" bracelets at Easton Area Middle School during the 2010-2011 school year. A few teachers, after observing the students wear the bracelets every day for several weeks, considered whether they should take action. The teachers' responses varied: One found the bracelets offensive because they trivialized breast cancer. Others feared that the bracelets might lead to offensive comments or invite inappropriate touching. But school administrators also believed that middle-school boys did not need the bracelets as an excuse to make sexual statements or to engage in inappropriate touching. See, e.g., Viglianti Test., App. 196, 198 (testifying that such incidents " happened before the bracelets" and were " going to happen after the bracelets" because " sexual curiosity between boys and girls in the middle school is . . . a natural and continuing thing" ).

In mid- to late September, four or five teachers asked the eighth-grade assistant principal, Amy Braxmeier, whether they should require students to remove the bracelets. The seventh-grade assistant principal, Anthony Viglianti, told the teachers that they should ask students to remove " wristbands that have the word 'boobie' written on them," App. 343, even though there were no reports that the bracelets had caused any in-school disruptions or inappropriate comments.1

With Breast Cancer Awareness Month approaching in October, school administrators anticipated that the " I [hearts] boobies! (KEEP A BREAST)" bracelets might reappear.2 The school was scheduled to observe Breast Cancer Awareness Month on October 28, so the day before, administrators publicly announced, for the first time, the ban on bracelets containing the word " boobies." Using the word " boobies" in his announcement, Viglianti notified students of the ban over the public-address system, and a student did the same on the school's television station. The Middle School still encouraged students to wear the traditional pink, and it provided teachers who donated to Susan G. Komen for the Cure with either a pin bearing the slogan " Passionately Pink for the Cure" or a T-shirt reading " Real Rovers Wear Pink."

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Later that day, a school security guard noticed B.H. wearing an " I [hearts] boobies! (KEEP A BREAST)" bracelet and ordered her to remove it. B.H. refused. After meeting with Braxmeier, B.H. relented, removed her bracelet, and returned to lunch. No disruption occurred at any time that day.

The following day, B.H. and K.M. each wore their " I [hearts] boobies! (KEEP A BREAST)" bracelets to observe the Middle School's Breast Cancer Awareness Day. The day was uneventful--until lunchtime. Once in the cafeteria, both girls were instructed by a school security guard to remove their bracelets. Both girls refused. Hearing this encounter, another girl, R.T...

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