Yesterday the Court of Appeals for the Third Circuit sat en banc hearing arguments in the “I ♥ Boobies” bracelet case. In listening to oral argument, I was struck when one of the judges stated at 16:33, “I understand your policy position, but I am still frankly trying to understand your legal position. And I Will concede that while my colleagues may well be able to find a coherence in the Supreme Court’s school speech cases, some of it has eluded me which is why I am trying to [unintelligible] with Tinker, with Frasier, and with Morse.”
The oral argument, even if you only listen to the first 20 minutes, the argument for the school district and the questions from the bench reveal the difficulties created for schools since Frasier and Morse. Both of these cases provided a great deal of discretion for schools to police language. Frasier suggests that the ‘double entendre’ is grounds for sanction. Morse extends that discretion to statements that are ambiguously related to drugs even if there is no clear meaning. As reported by the Morning Call, the school’s attorney noted that allowing this speech “”…threatens to open the floodgates to cause-based marketing fueled by sexual innuendo,” school district lawyer John E. Freund said, noting hat other diseases, including testicular cancer, have spawned awareness campaigns with slogans designed to get attention through titillation.”
The claim of the school in the case before the Third Circuit is that two women wearing plastic bracelets that read “I ♥ Boobies” on the same day that others in the school, including teachers, were wearing other paraphernalia supporting breast cancer awareness. Essentially, the school district is arguing that 1) the statement on the bracelet has two meanings and one is to titillate and 2) that the mere presence of the word “boobies” on a bracelet causes a material disruption when we are dealing with middle schoolers.
How far does this reasoning extend? Is anything that might cause an outbreak of giggles or juvenile jokes now susceptible to censorship? I am not a fan of the slippery slope argument, but the Court’s cases since Tinker seems to head in that direction—reducing school discourse and free speech to such an extent that schools are allowed to quash any speech that might be taken in a sexual way or as associated with drugs? Can the schools eliminate homophones (or close relatives) that tend to get grade and middle schoolers flustered? What will be next? “Call of Duty” phone skins or t-shirts will be banned because some younger students might take the opportunity to take the conversation in a different direction? On Career Day, parents must use different words to describe their jobs as analysts?
Perhaps the Third Circuit will find a way to stop the avalanche down this slope that the school district wishes to ride. And if presented to your class as a hypothetical, this case seems like a good one to use to draw distinctions between Tinker and its progeny.