Legal matters: “I (heart) boobies!” bracelets, school students and free speech

June 28th, 2018

By Dean I Weitzman, Esq.


As Americans, our right to individual free speech is so important that it’s listed first in our U.S. Bill of Rights and as part of the First Amendment in our U.S. Constitution.

It is sweeping – it covers even violent or angry speech. But it does have its limits – you don’t have the legal right to scream “fire” in a crowded public space and cause a panic.

There are other gray areas – school students certainly have the right to free speech, but there are often additional restrictions because they are in a controlled school environment and also are minors.

In recent months, the issue of free speech among school students has become a topic of great debate surrounding simple, rubber “I (heart) boobies! (Keep A Breast)” wrist bracelets being worn by many students across the country to support breast cancer research, survivors and health.

I heart boobies bracelets 1 10 11 LKKBWA0000028

These are the "I (heart) boobies!" bracelets that are sold to raise funds for the non-profit Keep A Breast Foundation. Photo courtesy of Keep A Breast Foundation.

Teens are wearing these bracelets to school and are being sent home or to principal’s offices.

The legal question is, are school students’ free speech rights are being taken from them if they get in trouble for wearing the bracelets at school?

Here in Pennsylvania, in Easton north of Philadelphia, a legal fight about this issue is under way involving two middle-school girls who were suspended from school after wearing “I (heart)  boobies!” bracelets to school. The bracelets were banned by the school district in October, following similar bans across the nation, according to an Associated Press (AP) story.

The Easton Area School District argues that school students shouldn’t wear such bracelets to school because they refer to body parts in a “sexually-charged, double-entendre,” according to the AP story.

The bracelets are sold and publicized by the non-profit Keep A Breast Foundation of Carlsbad, Calif., which uses its “I Love Boobies!” campaign to educate young people about the dangers of breast cancer and to help them openly discuss a topic which is often taboo.

In November, the case was taken up by the American Civil Liberties Union of Pennsylvania (ACLUP), which is arguing that the boobies bracelets aren’t obscene or profane, thus making them something that shouldn’t be banned in the school.

In court last month, the girls said they wore the bracelets in defiance of the school’s ban so they could fight for a health issue that they believe in, according to the story. The girls wore the bracelets on Oct. 28, which was the school’s Breast Cancer Awareness Day, three days after the ban went into effect, according to the ACLUP.

In a letter to the school district in November, the ACLUP argued that the girls have “a constitutional right to wear the bracelets because they did not disrupt the school and were not lewd, profane or indecent,” according to the ACLUP. The school district’s response was to continue the ban, “arguing that some students and teachers were offended and that some boys were making fun of girls’ breasts,” according to the ACLUP.

According to David L. Hudson Jr., a First Amendment scholar at the First Amendment Center at Vanderbilt University in Nashville, public school students do have constitutional rights when they are in school, but at the same time “public school students do not possess unlimited First Amendment rights.” A school principal can restrict a student from cursing at a teacher in class or in the hallway but couldn’t stop them if they did that out of school, he wrote. At the same time, school officials, as arms of government, must respect the Bill of Rights and First Amendment.

That’s where the legal problems in this case arise – it’s a matter of judgment for the school officials, the students, the parents and the communities.

There have certainly been other cases with similar issues involving students and free speech.

In 1969, three students in one family were sent home from school in Des Moines, Iowa, after wearing black arm bands to school to protest U.S. involvement in the Vietnam War. The wearing of arm bands had been banned four years earlier. The case, Tinker vs. Des Moines, went all the way to the U.S. Supreme Court, which ruled in favor of the students, arguing that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” according to a transcript posted on a University of Missouri – Kansas City School of Law Web site on constitutional law.

In its ruling in the Tinker case, the Supreme Court wrote that the Tinker children took no actions that disrupted activities in their schools and that their actions were reasonable free speech.

“They wore [the black armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them,” the court wrote in its majority opinion. “They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.”

Wow. That sounds very much like what the two middle school girls in Easton did when they wore their boobies bracelets to school.

In two other important student free speech cases in the 1980s involving sexual innuendo and a student-edited newspaper that wanted to run stories on teen pregnancy and other topics, the Supreme Court handed down rulings that curbed student free speech rights, according to the Kansas City School of Law Web site.

But those cases were different than today’s “boobies” case.

The boobies bracelet case is not a case of sexual innuendo.

Kimmy McAtee, a spokeswoman for the Keep A Breast Foundation, said the group’s ” I (heart) boobies!” campaign is “meant to be light-hearted and to help in taking some of the fear out of breast cancer.”

There have been other cases of bracelet bans around the country, McAtee said, but parents have often intervened and rallied for their children, causing some districts to even reverse their bans.

“Once you educate people about what we are doing, we are finding that school districts are accepting of it,” she said. “They understand that this is actually sparking a discussion about health with young people.”

One such school district that initially banned the bracelets but later reversed their decision was the Fresno Unified School District in Fresno, Calif., according to a story in The Fresno Bee last August.

Later, “District officials then decided that the goal of raising money for breast cancer was important and returned the bracelets,” the story reported.

The nearby Clovis Unified School District, however, maintains its ban because its dress code forbids any clothes or jewelry that include sexually suggestive language or images, the story said.

So what is right?

At MyPhillyLawyer, we believe that the legal issues in this case support the rights of school students to wear “I (heart) boobies!” bracelets in schools.

These bracelets aren’t pornography. They are not banned sexual messages. They are not sexual in any way.

They are worn as statements by students about health care and disease prevention and they should be seen in the light in which they are meant.

Instead, school districts should be working with groups like the Keep A Breast Foundation and The American Cancer Society to increase the discussions about cancer and its prevention and treatment with young people in schools.

Any other view is preposterous and an example of censorship and should not be tolerated in a free and open society.

May the Easton Area School District and other districts across the nation soon come to their senses on this overblown controversy.

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