Last Monday, the U.S. Court of Appeals for the Third Circuit upheld an injunction prohibiting the Easton Area School District in Pennsylvania from enforcing a ban on “I Love Boobies! Save a Breast!” bracelets, the trendy bands that promote the Keep a Breast Foundation’s national breast cancer outreach and awareness campaign. But while a federal court may have found the bracelets protected under the First Amendment, the court of public opinion still takes issue with “I Love Boobies” and similar campaigns, with many people finding them toxic to the overall breast cancer conversation.
In its 9-5 decision, the federal court rejected the school district’s claim that the popular slogan is lecherous and disruptive, ruling that it provides commentary on a prevalent social issue. Particularly, Judge D. Brooks Smith wrote in his 74-page opinion for B.H. and K.M. v. Easton Area School District:
Schools cannot avoid teaching our citizens-in-training how to appropriately navigate the “marketplace of ideas.” Just because letting in one idea might invite even more difficult judgment calls about other ideas cannot justify suppressing speech of genuine social value.
“It’s a tremendous ruling supportive of student free speech,” Mary Catherine Roper, senior staff attorney at the American Civil Liberties Union of Pennsylvania (ACLU-PA) and lead counsel in the case, told RH Reality Check. “What this ruling does is recognize that teenagers talk about important things, whether it’s political issues [or] social issues. That’s the type of speech we most want to protect.”
The August 7 judgment puts to bed years of litigation that began in November 2010, when the ACLU-PA filed a lawsuit challenging the Easton Area School District’s “I Love Boobies!” bracelet ban, claiming it infringed on students’ First Amendment right to free speech. The original suit was lodged on behalf of Easton Area Middle School students Kayla Martinez and Brianna Hawk, who were suspended in October 2010 for declining to adhere to the ban, which was imposed over a month after students started wearing the wristbands without incident. In rationalizing the interdict, the middle school asserted some students were made uneasy by human sexuality topics, others were “prompted” to make sexual innuendos, and some staff found them offensive, the lawsuit claims.
While, in 2011, a federal judge granted ACLU-PA’s request for an emergency injunction on the ban, the Easton Area School District appealed the enjoinment, arguing the message behind the Keep a Breast Foundation’s catchphrase could be misconstrued as “lewd” and potentially hinder school activities. To prove such, the district invoked both the Supreme Court’s 1986 decision in Bethel School District v. Fraser, which upholds that schools can restrict student speech if it is “vulgar, lewd, profane or plainly offensive” (meaning it offers no fundamental social or political value to a broader conversation), and 1969′s Tinker v. Des Moines Independent Community School District, which states students have a constitutional right to free speech, but said speech can be regulated if a school proves it “materially and substantially interfere[s] with the requirements of appropriate discipline” in school operations. In its Monday decision, however, the Third Circuit found that the Easton Area School District could not prove either of its claims under these two edicts since the message is meant to stir constructive dialogue.
This is not the first time that “I Love Boobies” and similarly chest-centric breast cancer awareness campaigns, like the “Save the Ta-Tas” bumper stickers, have been subject to school bans. Moffat County School District in Colorado barred students from wearing Keep a Breast’s popular wristband in 2011, but rescinded the ban that year after pressure from the ACLU of Colorado. Sauk Prairie Middle School in Wisconsin also banned the same bracelets, and a federal court judge ruled in 2012 that it could continue to impose that ban. Wearing “I Love Boobies!” gear has also been prohibited at Laramie Junior High School in Wyoming (the ban was reversed), and at an Elmira, Oregon, high school, reports the Huffington Post. Similarly, two years ago, cheerleaders at an Arizona high school were banned from wearing t-shirts brandishing the slogan, “Feel for lumps, save your bumps,” in honor of Breast Cancer Awareness Month.
“[The August 7 decision] is a really important rule for schools to follow. When they see a message that a student is conveying a message, is talking about something that is a social or political issue, they can’t go looking for a way to eventually sanitize that,” Roper told RH Reality Check. “This means that schools have to really confront the fact that kids are gonna talk about controversial issues. They need to make sure there’s room for that conversation to happen.”