Boobies.
OK, I typed it. What’s the big deal?
It’s just a word. It’s nothing compared to other stuff on the internet. But that’s the internet. What about middle school kids expressing themselves in the hallways of their peers? Can they express “I [heart] boobies”? That’s the question before the Third Circuit Court of Appeals right now.
As you may have heard, two middle school students were suspended for wearing breast-cancer awareness bracelets stamped with the phrase, “I [heart] boobies.” They were backed by the American Civil Liberties Union and successful in the U.S. District Court for the Eastern District of Pennsylvania. The school district appealed the trial court’s decision and a three-judge panel heard arguments.
The school’s lawyer argued that it’s a slippery slope from “I [heart] boobies” to more explicit phrases that advance testicular-cancer awareness, for example, such as bracelets that advocate for various causes, such as: “Feel my balls” and “I [heart] cock.”
But the students maintained that the bracelets at issue were part of a discussion about breast cancer, unlike phrases about genital contact.
In questioning of counsel, Judge Thomas M. Hardiman emphasized the issue of speaker’s intent versus the way in which the language is understood. This comes from the U.S. Supreme Court precedent set in Bethel School District v. Fraser , “it matters not that I had a noble intent” if what he says is lewd. The countervailing consideration is whether the speech is inherently lewd. An opinion in Fraser, decided in 1986 after a high-school student rendered a speech laden with sexual innuendo, allows school administrators to ban speech they deem to be lewd or vulgar.
“If you’re going to win here, it’s got to be Fraser, not Tinker ,” Hardiman opined, referencing the other U.S. Supreme Court decision that is relevant to the case. The 1969 opinion in Tinker v. Des Moines Independent Community School District sets a higher bar than Fraser, ruling that student expression can only be stifled if it is disruptive.
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Arguably, “boobie” is a word used by girls to discuss their bodies with their mothers and grandmothers, argued the students’ counsel. The word “boobies” is a step above ‘wee wee,'” she argued. It will be interesting to see how the Third Circuit court of appeals rules on this.
