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Oct 31 2013

I “Heart” Boobies Case Heading to Supreme Court

I remember when my son first came home wearing one from Middle School about five or six years ago – one of those cheap rubber “message bracelets” made popular by Lance Armstrong’s Livestrong Foundation. Except my son’s bracelet said “I [heart] Boobies!” It made me instantly nostalgic for the metallic Vietnam POW bracelets we wore in middle school and to sound off like the old man I now was “When I was your age we wore heroes’ names on our wrists not Boobies!” But this silly little gimmick is heading to the highest court in the country.

The Easton Pennsylvania School District board voted 7-1 yesterday to appeal a federal appeals court’s decision that rejected its claim the bracelets are lewd and should be banned from school.The case started in 2010 when two girls, then ages 12 and 13, challenged the school’s ban on the bracelets designed to promote breast cancer awareness among young people (and designed to make a fortune -see below). The students, Brianna Hawk and Kayla Martinez, said they merely hoped to promote awareness of the disease at their middle school. They filed suit when they were suspended for defying the ban on their school’s Breast Cancer Awareness Day.

In August, the 3rd U.S. Circuit Court of Appeals upheld a lower court’s decision in favor of the girls, saying also that the district didn’t prove the bracelets are disruptive. This looks like a total waste of taxpayers’ money in my opinion as I think if the Supremes decide to hear it, it will be an open and shut case in the girls’ favor.

Generally under the First Amendment, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. There are exceptions: the government is empowered to impose time, place, and manner restrictions on speech, to make reasonable, content-based decisions about what speech is allowed on government property that is not fully open to the public, to decide what viewpoints to espouse in its own speech or speech that might be attributed to it, and categorically to restrict unprotected speech, such as obscenity. Here, the government would be arguing that its merely telling kids WHEN they can relate this message not that they can’t relate it at all, known as a “time, place or manner” restriction.

Although students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, the First Amendment has to be applied in light of the special characteristics of the school environment, and thus students’ rights to freedom of speech are not automatically equal to the rights of adults in other settings. So courts allow schools to restrict speech that is disruptive or threatens a specific and substantial disruption. That isn’t the case here, the school has no evidence of a disruption caused by the bracelets.

There are then three narrow circumstances in which the government may restrict student speech even when there is no risk of substantial disruption or invasion of others’ rights: first, the government may categorically restrict vulgar, lewd, profane, or plainly offensive speech in schools, even if it would not be obscene outside of school; second, the government may likewise restrict speech that a reasonable observer would interpret as advocating illegal drug use and that cannot plausibly be interpreted as commenting on any political or social issue; and third, the government may impose restrictions on school-sponsored speech that are reasonably related to legitimate teaching concerns (think of an “I hate Melville” bracelet when the school is teaching Moby Dick). If the speech is ambiguous, courts give a lot of deference to the school district in determining whether it its lewd but will also consider whether a reasonable person would believe that while possibly lewd, it also spoke to a political or expressive non-lewd statement.

The court here decided that the bracelets that used term “boobies” were not plainly lewd, and so the school district’s ban on those bracelets was not a reasonable exercise of its authority to prohibit lewd or vulgar speech. Certain facts hurt the district’s arguments: school administrators did not conclude that the bracelets were vulgar until students had worn them every day for nearly two months; the school itself used the term “boobies” in announcing the ban over the public address system and the school’s television station; and the term was not one of the seven words considered obscene to minors on broadcast television.

Furthermore, the court found that a reasonable observer would plausibly interpret the bracelets as being part of a national breast-cancer-awareness campaign and not meant to be a sexual expression. In this part of the court’s decision, it had to rely on a recent 5-4 Supreme Court decision called Morse v. Frederick” which upheld a school district’s suspension of a student who had waved a banner proclaiming “Bong Hits 4 Jesus” on a school trip. Judge Alito in his concurring opinion joined by Justice Kennedy (which broke the tie) said that a reasonable observer would believe the banner was promoting drug use and therefore the school should be given deference for interpreting it that way as well. Consequently, the court here held that ambiguously lewd speech cannot be categorically restricted if it can plausibly be interpreted by a reasonable observer as political or social speech.

It will be interesting to hear the Justices of the Supreme Court having to repeatedly say “Boobies” during oral argument. Justice Scalia will undoubtedly point out how this is a further example of the Hell-bound path our culture is taking. But that argument may actually help the students here. In today’s world, with R-rated video games; with every kids’ movie throwing in at least one curse word to raise the rating from G to PG-13; and with all the exposure to sexual phrases in music and music videos, can “boobies” really be considered lewd? I expect this one to go in favor of the students by a greater than 5-4 margin.

On a side note,if I were the attorney for the school district, I would be arguing that the bracelets are fashion statements and not political speech because the company that makes them is stretching the term “not for profit” like kids stretch their bracelets. The Keep-A-Breast Foundation, makers of the bracelets, calls itself a “not-for-profit” and has that official designation with the IRS. But it is an incredible money-maker that donates almost no money to Breast Cancer research. I did a little poking around on the internet and found their 2010 Financial Report. They grossed over $7.6 Million in 2010 and had a total of expenses of $1.5 Million leaving a hefty net profit of around $6.1 million. Out of the $1.5 MM in expenses, only $188,000.00 is attributable to grants! That’s approximately2.4% of total revenue. Believe it or not that’s almost double what they have done in past years where charitable donations and grants hover around 1.5% of total revenue. In an NBC report into the “charity” in 2010, this quote appears:

“We’re still trying to figure out what we’re going to do with all the money,” said Executive Director Shaney Jo Darden, an artist and designer who co-founded the foundation.

So think twice before you “Think Pink” or buy your kid one of these bracelets. Some school districts are requiring a parental release prior to letting kids walk around with these. Many of these NFP organizations are in it for self-survival and do not spend large amounts of money on the causes they allegedly support. Keep a Breast defends itself by stating that they never told anyone they were raising money for research. All they proclaim to be is an advocacy organization that “raises awareness” and that they are successfully doing that. Here is another quote from that NBC report:

The foundation has never promised that it would directly turn over a significant proportion of its donations to cancer research and treatment programs. Most of the money it raises supports traveling education projects and art and music campaigns intended to create a national community of cancer survivors and activists that’s “easy and approachable to talk to” and isn’t all about “a sea of pink ribbons,” Kimmy McAtee, the Foundation’s marketing manager said.

Yet the 2010 financial report says it spent $56K approximately on travel and around $40K on “touring.” So what gives? I don’t know if the School District raised this issue below, but it seems to me that an interesting argument can be made about the nature of these bracelets and what they really promote.

Here’s a link to the NBC report:

http://www.nbcnews.com/id/40072867/#.UnJ2KFOwW84

7 comments

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  1. Gloria Wolk

    Again, I must congratulate you on an excellent post. I’m not persuaded by anything the major media reports, which is why I won’t bother with the link to NBC, but I have found your description and analysis of issues to be trustworthy, every time.

  2. carlos danger

    ” This looks like a total waste of taxpayers’ money”

    How do you know who’s funding the case ? Have you been to Easton recently ? What is there other than a Crayon museum. I have serious doubts they have a million + to take a (silly) case all the way to SCOTUS. And If they are using taxpayer money it is a shocking waste of public money.

    “On a side note,if I were the attorney for the school district, I would be arguing ”

    You should take the litigator hat off sometime. What you should be arguing is not that it’s a fashion statement but that you are a tiny town and this is not a wise use of your money.

    Also why would SCOTUS hear this case ? Why pay for the legal time when they likely aren’t going to hear the silly case anyway ?

    1. Oscar Michelen

      Carlos: I am a litigator and the main point of the blog is “courtroom strategy” and how legal arguments affecting our daily lives play out in the courts, so the litigator hat is stuck on I’m afraid (though you should have observed that I also wrote about the money being raised by the bracelets, which is not about litigation).Easton (besides being home to crayon giant Crayola) is also the home of Larry Holmes, one of the few boxers to retire with a lot of money, and is also home to Lafayette College. I have visited the Crayola factory with my kids a few times over the years and it is a middle class area with a nice historic downtown area. Nothing in the court papers or case history reveals that there is any outside funding of the case so it does seem that the school district is paying the bills. As my blog states, I think this is an open and shut case, so I don’t know why they would be spending this money. I wholeheartedly agree with you on that point – I would be very upset if my school district took up this fight. Maybe their appellate counsel are looking for some more bucks and have convinced the Board of Education its worth fighting. We’ll know soon enough if certiorari is granted or denied by SCOTUS.

  3. Cole Trickle

    ” I am a litigator and the main point of the blog is “courtroom strategy” ”

    I’m well aware of that. (I needed to create a jumping off point for my own point). On the other hand, there is a reason you rarely see a litigator hired as a GC.

  4. Cole Trickle fka Carlos Danger

    ” nice historic downtown area.”

    On this. Nice historic downtown area ? The place looked to be in a near depression to me. But I don’t have any numbers to support it. Just using my eyes.

    1. Oscar Michelen

      Maybe “nice historic downtown” is a bit stretched.

  5. Vanessa U. Lester

    The bracelets were not plainly lewd or vulgar; indeed, they were, under Fraser, unambiguously not lewd or vulgar. The actual slogan—with “I [heart] boobies!” modified by the phrase “(KEEP A BREAST)”—is clearly a message designed to promote breast cancer awareness. (That may explain why school officials first disciplined the girls for “disrespect” and “defiance,” without reference to inappropriate speech.) The district court was entirely correct—and admirably succinct—on this point.

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