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Schools cannot punish students for lewd speech with a political or social message

3rd Circuit says middle schoolers shouldn't have been punished for wearing “I ♥ boobies!” bracelets for breast cancer

A 3rd Circuit ruling that seems silly at first actually reshapes how schools can regulate students' free speech.

On Monday, the 3rd Circuit handed down a decision that said a school district in Pennsylvania was wrong to suspend two middle school girls for wearing bracelets that said “I ♥ boobies!” The bracelets were meant to raise awareness for breast cancer. 

The 1969 Supreme Court decision Tinker v. Des Moines School District, centering on black armbands worn to protest the Vietnam War, found that schools are allowed to regulate free speech when they feel it could be a “substantial disruption.” More recent rulings have skewed the same way. 

But the 3rd Circuit in this decision added a caveat, saying that if the so-called offensive speech could be interpreted as a form of political or social commentary, it becomes acceptable.

Five justices on the en banc panel dissented, writing, “in sum, the Majority‘s approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive. In both cases, the inappropriate language is identical, but the speech is constitutionally protected as long as it meets the Majority‘s cramped definition of ‘politics’ or its as-yet-undefined notion of what constitutes ‘social commentary.’”

Of course, what exactly counts as commentary remains to be seen. But we know “I ♥ boobies!” does.

Read more at the Wall Street Journal

For more InsideCounsel coverage of free speech, see below:

Japan Tobacco sues Thailand over proposed larger cigarette warning labels

4th Circuit invalidates NLRB poster rule

4th Circuit hears appeal claiming Facebook “likes” are free speech

Supreme Court may hear free speech challenge to FDA’s authority to regulate tobacco

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