Court weighs 'lewdness' in Pa. school free-speech case

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Two middle school students who were suspended by their school district for wearing breast-cancer awareness bracelets stamped with the word "boobies" again find their free-speech case before a federal appeals court.

As with the judges who have previously heard the details of the case, the 14 judges on the U.S. Court of Appeals for the Third Circuit who sat en banc to hear arguments on the school speech case last week sought to 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 the sexual double-entendre inherent in the phrase "I [heart] 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 Mr. Freund. "I'd suggest that your chuckle is less mature than the two or three young kids here," Judge 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, Judge McKee said. But, for the district, the case was less about free speech than it was dress code enforcement.

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, before the full appeals court.

That full-panel hearing happened last week.

legalnews

Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. To read more articles like this, visit www.thelegalintelligencer.com.


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