The 14 judges on the U.S. Court of Appeals for the Third Circuit who sat en banc to hear arguments on a school speech case demonstrated the difficulty in finding a unified answer to one of the case's central questions: whether or not the word "boobies" on a breast-cancer-awareness bracelet is sufficiently lewd to be banned from a middle school.
John Freund, representing the Easton Area School District, argued that the sexual double-entendre inherent in the phrase "I ♥ boobies," which was stamped on rubber bracelets distributed by the Keep A Breast Foundation, is distracting in a middle school setting.
"Where's the double-entendre? Boobies are breasts," said Third Circuit Judge Theodore McKee, drawing a laugh from Freund.
"I'd suggest that your chuckle is less mature than the two or three young kids here," McKee said, referring to the middle school students who brought the case after they were disciplined by school administrators for wearing the bracelets.
Their mission was to remove the stigma attached to breasts and encourage self-examination, McKee said.
After the students, represented by the American Civil Liberties Union, prevailed in the district court, the school district appealed and the first arguments were heard last April. In August, before the initial panel ever issued an opinion, the court announced it would rehear arguments en banc.
The sexual innuendo in the phrase relies on the desire for breasts, Judge D. Brooks Smith asked Freund, who agreed.
Smith then suggested that Freund is looking for the court to grant him an opinion that goes beyond the U.S. Supreme Court's two landmark opinions governing free speech in schools Tinker v. Des Moines Independent Community School District from 1969 and Bethel School District v. Fraser from 1986.
Smith said that Freund is actually looking for an extension of Fraser, which allowed school administrators to ban language they deemed to be lewd or vulgar after a high-school student gave a speech laden with sexual innuendo. Here, the standard would move from language that is plainly indecent to language that is ambiguously indecent and would offer no refuge for speech addressing matters of public concern, Smith said.
"We believe there is a level of frank lewdness that schools can prohibit," ACLU lawyer Mary Catherine Roper told the court later, but anything as ambiguous as the bracelets at issue in this case doesn't count.