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Washington Post: Free speech for students

Published August 19, 2013 11:44 pm

The Washington Post
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Neon-colored rubbery bracelets bearing the message "I (heart) boobies!" in bright, white lettering proliferate on the wrists of U.S. middle school students. The bracelets feature prominently in the Keep a Breast Foundation's campaign to raise breast cancer awareness. But concerns about suggestiveness in the bracelets' message prompted principals and school districts across the country to set rules against them, triggering opposition from free-speech advocates. One of many such disputes wound up in federal court.

On Aug. 5, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia upheld a lower court's decision in favor of two Easton, Pa., middle school students' right to wear the bracelets without fear of penalties. With the help of the American Civil Liberties Union, the two students had sued their school district after they spent a day and a half in in-school suspension and were barred from attending their school's winter ball. The case raised constitutional questions about the balance between the allegedly lewd nature and level of distraction the bracelets presented vs. the students' right to free speech.

Correctly in this case, the trial and appellate courts acknowledged the confusing and slippery nature of limiting free speech in schools and cautiously sided with the bracelet wearers. There is not enough proof that the bracelets are sufficiently lewd or distracting to risk impinging on students' right to free speech.

Previous federal court decisions have already made murky free speech rights in cases of potentially controversial student expression. In 1969, the Supreme Court upheld students' right to wear black armbands to protest the Vietnam War; in 1986, the court upheld a school district's right to punish a student who capitalized on a student government nomination ceremony by delivering a speech featuring an extended metaphor for sex; and in 2007, the court sided with a school district's decision to punish a student who hung a banner declaring "Bong Hits 4 Jesus." In short, the 3rd Circuit's challenge in the "I (heart) boobies!" case was whether the case met a standard that Supreme Court Justice Clarence Thomas described in a prior opinion as "students have a right to speak in schools except when they don't."

Many find the words on the bracelets offensive because, when spoken by a 14-year-old boy and un-linked to a social cause, their intent would be interpreted as such. The bracelet makers deny sexualizing a disease, but the suggestiveness and two-way meaning of the sentence are in fact the ploy that makes the bracelets popular among a certain crowd. "Boobies" elicits giggles.

Still, banning the bracelets to muffle laughter is not worth the high cost and future repercussions of overstepping students' already limited rights to free speech — and the freedom to support what is at root a provocative campaign to generate breast cancer awareness, however distasteful it may be to students' teachers.