How Labeling Terms for Women’s Body Parts “Vulgar” Can Impede Education and Advocacy for Women’s Health Issues
By Jillian Stonecipher
The Third Circuit recently decided that the First Amendment prevents public school districts from punishing students for wearing wrist bands reading “I ♥ boobies! (Keep a Breast)” in school in order to advocate for breast cancer awareness. In a 9–5 en banc decision, the court held that the bracelets were not “plainly lewd” and discussed an “important social issue,” and therefore could not be banned under either Tinker v. Des Moines Independent Community School District or Bethel School District No. 403 v. Fraser. The court rejected the school district’s arguments that the phrase “I ♥ boobies!” was plainly lewd, that the district had the authority to censor any ambiguously lewd language commenting on social issues, and that it needed to censor the students’ advocacy in order to prevent sexual harassment in the school.
When the plaintiffs, two middle school girls, refused to remove their wrist bands, which were developed by the Keep A Breast Foundation to educate young women about breast cancer, the school suspended them for 1.5 days and banned them from attending the school’s winter dance. The students sued for an injunction, and the district court granted one, finding that the students were likely to succeed on the merits of their claim.
The Third Circuit’s affirmation of this finding is a win both for speech and for gender equality. The case will make it more difficult for school administrators to punish students for engaging in political or social speech that deals with health and/or sex and sexuality—perhaps leading to freer, less stigmatized discussions of not only breast cancer prevention and body image issues, but also safe sex practices and rape and sexual harassment prevention. The decision provides welcome support for students in light of Supreme Court precedent that has created an unfriendly environment for student advocacy. In Tinker, the Court held that students may not express their opinions in school if their speech is reasonably expected to substantially disrupt school. And in Fraser, the Court found that public schools can prohibit the use of “vulgar, lewd, profane, or plainly offensive speech,” even if it is not obscene, could not be banned in an adult context, and does not disrupt the school’s operation.
The Third Circuit, however, read a limitation into school’s ability to ban “offensive” speech from the Court’s 2007 decision in Morse v. Frederick. The majority in Morse held that a school principal had the power to “safeguard” students from a message that could “reasonably be regarded as encouraging illegal drug use.” In a concurrence, however, Justice Alito conditioned his vote (which was necessary for the majority) on the “understanding that (1) [the majority opinion] goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”
The Third Circuit read that concurrence as controlling (an approach that has been hotly contested among circuit courts), and found that it limited Fraser such that the case “does not permit ambiguously lewd speech to be categorically restricted if it can plausibly be interpreted as political or social speech.” The court found that “Fraser is not a blank check to categorically restrict any speech that touches on sex or any speech that has the potential to offend.”
This novel interpretation of Morse and Fraser prevents school administrators’ hang-ups about sex and sexual organs from stifling student speech on important issues affecting their bodies—a wise approach, considering the possibility that school administrators “if empowered to do so, might eliminate all student speech touching on sex or merely having the potential to offend.” In fact, the administrators of EASD “initially testified that they could ban the word ‘breast,’ even if used in the context of a breast-cancer-awareness campaign, because the word, by itself, ‘can be construed as [having] a sexual connotation.” If the school district had retained the discretion to define “offensive” speech for itself, young women in the district would not have been able to use any word to discuss a serious health issue merely because other students might find any reference to a breast sexual. As the court concluded, “[i]f schools can categorically regulate terms like ‘boobies’ even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex.” Eliminating such speech should not be a school’s mission. Instead, the court stated, schools should “mold students into citizens capable of engaging in civil discourse [which] includes teaching students of sufficient age and maturity how to navigate debates touching on sex.”
Unfortunately, the court did not broadly hold that school administrations must allow students to openly discuss political and social issues affecting their sexual organs—a holding that would have been a particularly positive development for girls who, studies have shown, struggle with body issues in their teens but suffer in silence due to the new sigma attached to their bodies as “vulgar” sexual objects. Instead, the court carefully restricted its analysis to the term “boobies,” refusing to weigh in on the school’s dress code, which bans t-shirts promoting breast cancer awareness reading “Save the ta-tas” and testicular cancer awareness paraphernalia reading “feelmyballs.org,” or to respond to the dissent’s fear that, under the court’s test, in the context of health advocacy, “‘I ♥ penises,’ ‘I ♥ vaginas,’ ‘I ♥ testicles,’ or ‘I ♥ breasts’ would apparently be phrases or slogans that school districts would be powerless to address.” (It is unclear what terms the dissent wants students to use when promoting health awareness). In fact, the court found that a school could “categorically restrict an ‘I ♥ tits! (KEEP A BREAST)’ bracelet because … the word ‘tits’ (and also presumably the diminutive ‘titties’) is a patently offensive reference to sexual organs and thus obscene to minors.”
Additionally, by referring to the bracelets as “touching on sex” the court failed to address the larger problem underlying the case: the over-sexualization of the breast, and the consequent labeling of common terms for breasts vulgar and obscene. As the Brief of Amici Curiae Dedicated to Gender Equality stated, “assuming that every use of the words ‘boobies’ and ‘breasts’ is lewd or vulgar” “relies on the belief that breasts are exclusively or primarily sexual, a notion that is rooted in male-centered conceptions of the female body.” The school district’s ban “teach[es] middle school girls that sexualized breasts are the only acceptable kind,” which “affects whether they view themselves with a sense of self-worth.” Telling young women that talking about their breasts is vulgar and forbidden also discourages young women from discussing breast cancer risks and performing breast checks. In fact, the Keep a Breast Foundation’s goal in creating the “I ♥ boobies!” bracelets was to remove the stigma from breasts in order to create a hospitable environment in which young women could feel comfortable learning about breast cancer risks and taking preventative steps. The court supported young women’s right to talk about their breasts in certain contexts but failed to recognize that breasts are not exclusively or primarily sexual.
Numerous school districts around the country have banned the “I ♥ boobies!” bracelets, and a number of students have objected in court. In fact, a Wisconsin federal judge recently refused to overturn a ban on the bracelets at Sauk Prairie Middle School. Similar cases have reached court in Indiana, Wyoming, and Pennsylvania. Because the Third Circuit opinion involves a novel interpretation of precedent on an important First Amendment issue, it is possible that the issue will find its way to the Supreme Court in the near future. Easton officials have 90 days to decide whether to appeal to the Court and have not yet filed for certiorari. Should the Court decide one of the “I ♥ boobies!” cases in the future, it should consider the Third Circuit opinion a helpful and appropriate way to interpret Tinker, Fraser, and Morse to provide young adults with the freedom to advocate on social issues involving health and sexuality.
(Thumbnail image courtesy of Flickr user Christ1254 pursuant to a Creative Commons license.)
 J.D., Harvard Law School, 2014.
 B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 WL 3970093 at 5-6 (3rd Cir. Aug. 5, 2013).
 393 U.S. 503 (1969).
 478 U.S. 675 (1986).
 Easton Area Sch. Dist., No. 11-2067 at 6.
 Id. at 11.
 Id. at 13-15.
 393 U.S. at 513.
 Easton Area Sch. Dist., No. 11-2067 at 5 (citing Fraser, 478 U.S. at 685).
 551 U.S. 393 (2007).
 Id. at 397.
 Id. at 422 (Alito, J., concurring).
 Easton Area Sch. Dist., No. 11-2067 at 51.
 Id. at 35.
 Id. at 58.
 Id. at 58-59.
 Id. at 55-56.
 Id. at 35.
 U.S. Dep’t of Agriculture, Eating Disorders (last visited Sept. 8, 2013), available at http://www.dm.usda.gov/ocpm/Security%20Guide/Eap/Eating.htm.
 Easton Area Sch. Dist., No. 11-2067 at 71.
 Easton Area Sch. Dist., No. 11-2067 at 3 (Greenaway, J., dissenting).
 Easton Area Sch. Dist., No. 11-2067 at 57.
 Brief of Amici Curiae Dedicated to Gender Equality in Support of Plaintiffs-Appellees and Supporting Affirmance at 5, B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 WL 3970093 at 5-6 (3rd Cir. Aug. 5, 2013).
 Id. at 9.
 Easton Area Sch. Dist., No. 11-2067 at 7.
 The Associated Press, Lift on ban of “I (heart) Boobies!” Bracelets in Pennsylvania schools (Aug. 6, 2013) NYDailyNews.com, available at http://www.nydailynews.com/news/national/ban-heart- boobies-bracelets-pennsylvania-schools-article-1.1418664#ixzz2dHWph2IO.