Court weighs vulgarity in school free-speech case

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The Easton Area School District doesn't want to demonize "boobies," its lawyer, John Freund, told the U.S. Court of Appeals for the Third Circuit earlier this month.

It just wants a line to be drawn between what's vulgar and what's not.

A three-judge panel heard arguments in a case brought by two middle school students backed by the American Civil Liberties Union, who were suspended by the school district for wearing breast-cancer awareness bracelets stamped with the phrase, "I [heart] boobies."

Their case was successful in the U.S. District Court for the Eastern District of Pennsylvania. The school district appealed the trial court's decision.

It's a slippery slope from "I [heart] boobies" to more vulgar phrases that advocate for, say, testicular-cancer awareness, Mr. Freund said, holding half-a-dozen of the popular rubber bracelets used to advocate for various causes, some of them using salty terminology for parts of the male anatomy.

Everybody understands that the bracelets at issue -- distributed by the Keep A Breast Foundation -- are part of a discussion about breast cancer, said Mary Catherine Roper, the ACLU attorney who argued the case. Phrases that evoke more off-color phrases are quite different from those encouraging girls to take care of their bodies, she said.

Judge Thomas M. Hardiman focused his questions to Ms. Roper sharply on the issue of the speaker's intent, versus the way in which the language is perceived.

If he were a middle school student, Judge Hardiman said, applying U.S. Supreme Court precedent set in Bethel School District v. Fraser, "It matters not that I had a noble intent" if what he says is lewd.

The opinion in Fraser, decided in 1986 after a high school student gave a speech laden with sexual innuendo, allows school administrators to ban speech they deem to be lewd or vulgar.

Mr. Freund agreed with the court that it is the precedent to be met.

"If you're going to win here, it's got to be Fraser, not Tinker," Judge Hardiman said, referencing the other U.S. Supreme Court decision that is relevant to the case. The 1969 opinion, in Tinker v. Des Moines Independent Community School District, sets a higher bar than Fraser, ruling student expression can only be stifled if it is disruptive.

Fraser is the clear choice, Mr. Freund said, but, "I wouldn't abandon Tinker."

Middle school is a "witch's brew of hormones and curiosity," Mr Freund said, arguing that it is easy to ignite a firestorm among middle school-age students that would be distracting and disruptive.

"'Boobies' is kind of on the margin" of what could be considered vulgar, Mr. Freund allowed, but if the bracelets at issue here are permissible in school, there would be no mechanism to ban more vulgar phrases associated with other awareness campaigns.

"While all of them have benevolent objectives, each of them falls into Fraser?" Judge Joseph A. Greenaway Jr. asked. Mr. Freund answered that they would -- regardless of their intended message, their language is perceived as lewd.

But looking at the phrase, even out of context, shouldn't satisfy the lewdness standard in Fraser, Ms. Roper argued. To understand it in terms of "how might a porn star use the phrase" is unfair, she said, adding that the context in which the word is used should inform its classification as lewd or not.

"Boobie" is a word that girls use to talk about their bodies with their mothers and grandmothers, she said. "It's a step above 'wee wee,'" she told the court.

Language shouldn't be defined as lewd just because it might make pubescent boys blush, Ms. Roper said.

The word "boobies" -- in certain contexts -- could arguably fall within the standard of Fraser, Ms. Roper said, answering a question from Judge Greenaway. But, she added, so could any other word.

.Ms. Roper argued it is the context in which the phrase is used that defines whether or not it is lewd. U.S. District Judge Mary A. McLaughlin, who ruled on the case in the lower court a year ago, agreed with that position.

legalnews

Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. To read more articles like this, visit www.thelegalintelligencer.com. First Published April 23, 2012 12:00 AM


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