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B.H. v. Easton Area School District

United States Court of Appeals, Third Circuit

August 5, 2013


Argued on April 10, 2012

Rehearing En Banc Ordered on August 16, 2012

Argued En Banc February 20, 2013

On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 5-10-cv-06283) District Judge: Honorable Mary A. McLaughlin

Keely J. Collins John E. Freund, III [ARGUED] Jeffrey T. Tucker King, Spry, Herman, Freund & Faul, Counsel for Appellant

Seth F. Kreimer University of Pennsylvania School of Law, Mary Catherine Roper [ARGUED] American Civil Liberties Union of Pennsylvania, Molly M. Tack-Hooper Berger & Montague, Witold J. Walczak American Civil Liberties Union, Counsel for Appellees

Sean A. Fields Pennsylvania School Boards Association, Counsel for Amicus Appellant

Wilson M. Brown, III Kathryn E. Deal Drinker, Biddle & Reath, Rory Wicks Gary L. Sirota, Amy R. Arroyo, Wayne Pollock Dechert LLP, Frank D. LoMonte Laura Napoli, Terry L. Fromson Carol E. Tracey, David L. Cohen, Counsel for Amici Appellees



SMITH, Circuit Judge

Once again, we are asked to find the balance between a student's right to free speech and a school's need to control its educational environment. In this case, two middle-school students purchased bracelets bearing the slogan "I ♥ boobies! (KEEP A BREAST)" as part of a nationally recognized breast-cancer-awareness campaign. The Easton Area School District banned the bracelets, relying on its authority under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), to restrict vulgar, lewd, profane, or plainly offensive speech, and its authority under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to restrict speech that is reasonably expected to substantially disrupt the school. The District Court held that the ban violated the students' rights to free speech and issued a preliminary injunction against the ban.

We agree with the District Court that neither Fraser nor Tinker can sustain the bracelet ban. The scope of a school's authority to restrict lewd, vulgar, profane, or plainly offensive speech under Fraser is a novel question left open by the Supreme Court, and one which we must now resolve. We hold that Fraser, as modified by the Supreme Court's later reasoning in Morse v. Frederick, 551 U.S. 393 (2007), sets up the following framework: (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser. The School District has also failed to show that the bracelets threatened to substantially disrupt the school under Tinker. We will therefore affirm the District Court.


A. Factual background

As a "leading youth focused global breast cancer organization, " the Keep A Breast Foundation tries to educate thirteen" to thirty-year-old women about breast cancer. Br. of Amicus Curiae KABF at 13. To that end, it often partners with other merchants to co-brand products that raise awareness. And because it believes that young women's "negative body image[s]" seriously inhibit their awareness of breast cancer, the Foundation's products often "seek[] to reduce the stigma by speaking to young people in a voice they can relate to." Id. at 14– 15. If young women see such awareness projects and products as cool and trendy, the thinking goes, then they will be more willing to talk about breast cancer openly.

To "start a conversation about that taboo in a light-hearted way" and to break down inhibitions keeping young women from performing self-examinations, the Foundation began its "I ♥ Boobies!" initiative. Id. at 20– 21. Part of the campaign included selling silicone bracelets of assorted colors emblazoned with "I ♥ Boobies! (KEEP A BREAST)" and "check y♥urself! (KEEP A BREAST)." Id. at 21–22. The Foundation's website address ( and motto ("art. education. awareness. action.") appear on the inside of the bracelet. Id.

As intended, the "I ♥ Boobies" initiative was a hit with young women, quickly becoming one of the Foundation's "most successful and high profile educational campaigns." Id. at 20–21. Two of the young women drawn to the bracelets were middle-school students B.H. and K.M. They purchased the bracelets with their mothers before the 2010–2011 school year— B.H. because she saw "a lot of [her] friends wearing" the bracelets and wanted to learn about them, and K.M. because of the bracelet's popularity and awareness message. App. 72, 92, 106, 442.

But the bracelets were more than just a new fashion trend. K.M.'s purchase prompted her to become educated about breast cancer in young women. The girls wore their bracelets both to commemorate friends and relatives who had suffered from breast cancer and to promote awareness among their friends. Indeed, their bracelets started conversations about breast cancer and did so far more effectively than the more-traditional pink ribbon. App. 73–74. That made sense to B.H., who observed that "no one really notices" the pink ribbon, whereas the "bracelets are new and . . . more appealing to teenagers." App. 74.

B.H., K.M., and three other students wore the "I ♥ boobies! (KEEP A BREAST)" bracelets at Easton Area Middle School during the 2010–2011 school year. A few teachers, after observing the students wear the bracelets every day for several weeks, considered whether they should take action. The teachers' responses varied: One found the bracelets offensive because they trivialized breast cancer. Others feared that the bracelets might lead to offensive comments or invite inappropriate touching. But school administrators also believed that middle-school boys did not need the bracelets as an excuse to make sexual statements or to engage in inappropriate touching. See, e.g., Viglianti Test., App. 196, 198 (testifying that such incidents "happened before the bracelets" and were "going to happen after the bracelets" because "sexual curiosity between boys and girls in the middle school is . . . a natural and continuing thing").

In mid- to late September, four or five teachers asked the eighth-grade assistant principal, Amy Braxmeier, whether they should require students to remove the bracelets. The seventh-grade assistant principal, Anthony Viglianti, told the teachers that they should ask students to remove "wristbands that have the word 'boobie' written on them, " App. 343, even though there were no reports that the bracelets had caused any in-school disruptions or inappropriate comments.[1]

With Breast Cancer Awareness Month approaching in October, school administrators anticipated that the "I ♥ boobies! (KEEP A BREAST)" bracelets might reappear.[2] The school was scheduled to observe Breast Cancer Awareness Month on October 28, so the day before, administrators publicly announced, for the first time, the ban on bracelets containing the word "boobies." Using the word "boobies" in his announcement, Viglianti notified students of the ban over the public-address system, and a student did the same on the school's television station. The Middle School still encouraged students to wear the traditional pink, and it provided teachers who donated to Susan G. Komen for the Cure with either a pin bearing the slogan "Passionately Pink for the Cure" or a T-shirt reading "Real Rovers Wear Pink."

Later that day, a school security guard noticed B.H. wearing an "I ♥ boobies! (KEEP A BREAST)" bracelet and ordered her to remove it. B.H. refused. After meeting with Braxmeier, B.H. relented, removed her bracelet, and returned to lunch. No disruption occurred at any time that day.

The following day, B.H. and K.M. each wore their "I ♥ boobies! (KEEP A BREAST)" bracelets to observe the Middle School's Breast Cancer Awareness Day. The day was uneventful—until lunchtime. Once in the cafeteria, both girls were instructed by a school security guard to remove their bracelets. Both girls refused. Hearing this encounter, another girl, R.T., stood up and similarly refused to take off her bracelet. Confronted by this act of solidarity, the security guard permitted the girls to finish eating their lunches before escorting them to Braxmeier's office. Again, the girls' actions caused no disruption in the cafeteria, though R.T. told Braxmeier that one boy had immaturely commented either that he also "love[d] boobies" or that he "love[d] her boobies."

Braxmeier spoke to all three girls, and R.T. agreed to remove her bracelet. B.H. and K.M. stood firm, however, citing their rights to freedom of speech. The Middle School administrators were having none of it. They punished B.H. and K.M. by giving each of them one and a half days of in-school suspension and by forbidding them from attending the Winter Ball. The administrators notified the girls' families, explaining only that B.H. and K.M. were being disciplined for "disrespect, " "defiance, " and "disruption."

News of the bracelets quickly reached the rest of the Easton Area School District, which instituted a district-wide ban on the "I ♥ boobies! (KEEP A BREAST)" bracelets, effective on November 9, 2010. The only bracelet-related incident reported by school administrators occurred weeks after the district-wide ban: Two girls were talking about their bracelets at lunch when a boy who overheard them interrupted and said something like "I want boobies." He also made an inappropriate gesture with two red spherical candies. The boy admitted his "rude" comment and was suspended for one day.[3]

This was not the first time the Middle School had banned clothing that it found distasteful. Indeed, the School District's dress-code policy prohibits "clothing imprinted with nudity, vulgarity, obscenity, profanity, and double entendre pictures or slogans."[4] Under the policy, seventh-grade students at the Middle School have been asked to remove clothing promoting Hooters and Big Pecker's Bar & Grill, as well as clothing bearing the phrase "Save the ta-tas" (another breast-cancer-awareness slogan). Typically, students are disciplined only if they actually refuse to remove the offending apparel when asked to do so.

B. Procedural history

Through their mothers, B.H. and K.M. sued the School District under 42 U.S.C. § 1983.[5] Compl., ECF No. 1 ¶ 3, B.H. v. Easton Area Sch. Dist., No. 5:10-CV-06283-MAM (E.D. Pa. Nov. 15, 2010). They sought a temporary restraining order allowing them to attend the Winter Ball and a preliminary injunction against the bracelet ban. B.H. v. Easton Area Sch. Dist., 827 F.Supp.2d 392, 394 (E.D. Pa. 2011). At the District Court's urging, the School District reversed course and permitted B.H. and K.M. to attend the Winter Ball while retaining the option to impose a comparable punishment if the bracelet ban was upheld. Id. The District Court accordingly denied the motion for a temporary restraining order. Id.

The District Court conducted an evidentiary hearing on the request for a preliminary injunction. It soon became clear that the School District's rationale for disciplining B.H. and K.M. had shifted. Although B.H.'s and K.M.'s disciplinary letters indicated only that they were being disciplined for "disrespect, " "defiance, " and "disruption, " the School District ultimately based the ban on its dress-code policy[6] together with the bracelets' alleged sexual innuendo. According to the School District's witnesses, the Middle School assistant principals had conferred and concluded that the bracelets "conveyed a sexual double entendre" that could be harmful and confusing to students of different physical and sexual developmental levels. Sch. Dist.'s Br. at 9. And the principals believed that middle-school students, who often have immature views of sex, were particularly likely to interpret the bracelets that way. For its part, the Foundation explained that no one there "ever suggested that the phrase 'I (Heart) Boobies!' is meant to be sexy." App. 150. To that end, the Foundation had denied requests from truck stops, convenience stores, vending machine companies, and pornographers to sell the bracelets.

After the evidentiary hearing, the District Court preliminarily enjoined the School District's bracelet ban. According to the District Court, B.H. and K.M. were likely to succeed on the merits because the bracelets did not contain lewd speech under Fraser and did not threaten to substantially disrupt the school environment under Tinker. The District Court could find no other basis for regulating the student speech at issue. The School District appealed, and the District Court denied its request to stay the injunction pending this appeal.


Although the District Court's preliminary injunction is not a final order, we have jurisdiction under 28 U.S.C. § 1292(a)(1), which grants appellate jurisdiction over "[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing, or dissolving injunctions." See Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 252 n.10 (3d Cir. 2002). We review the District Court's factual findings for clear error, its legal conclusions de novo, and its ultimate decision to grant the preliminary injunction for abuse of discretion. Id. at 252. Four factors determine whether a preliminary injunction is appropriate:

(1) whether the movant has a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denying the injunction; (3) whether there will be greater harm to the nonmoving party if the injunction is granted; and (4) whether granting the injunction is in the public interest.

Id. (quoting Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170 (3d Cir. 2001)). The District Court concluded that all four factors weighed in favor of B.H. and K.M. In school-speech cases, though, the first factor—the likelihood of success on the merits—tends to determine which way the other factors fall. Id. at 258. Because the same is true here, we focus first on B.H. and K.M.'s burden to show a likelihood of success on the merits. Id.


The School District defends the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech under Fraser. As to the novel question of Fraser's scope, jurists seem to agree on one thing: "[t]he mode of analysis employed in Fraser is not entirely clear." Morse, 551 U.S. At 404.[7] On this point, we think the Supreme Court's student-speech cases are more consistent than they may first appear. As we explain, Fraser involved only plainly lewd speech. We hold that, under Fraser, a school may also categorically restrict speech that—although not plainly lewd, vulgar, or profane—could be interpreted by a reasonable observer as lewd, vulgar, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue. Because the "I ♥ boobies! (KEEP A BREAST)" bracelets are not plainly lewd and express support for a national breast-cancer-awareness campaign—unquestionably an important social issue—they may not be categorically restricted under Fraser.

A. The Supreme Court's decision in Fraser

"[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU, 535 U.S. 564, 573 (2002). Of course, there are exceptions. When acting as sovereign, the government is empowered to impose time, place, and manner restrictions on speech, see Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), make reasonable, content-based decisions about what speech is allowed on government property that is not fully open to the public, see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674–75 (1998), decide what viewpoints to espouse in its own speech or speech that might be attributed to it, see Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 560 (2005), and categorically restrict unprotected speech, such as obscenity, see Miller v. California, 413 U.S. 15, 23 (1973).[8]

Sometimes, however, the government acts in capacities that go beyond being sovereign. In those capacities, it not only retains its sovereign authority over speech but also gains additional flexibility to regulate speech. See In re Kendall, 712 F.3d 814, 825 (3d Cir. 2013) (collecting examples). One of those other capacities is K-12 educator. Although "students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, '" the First Amendment has to be "applied in light of the special characteristics of the school environment" and thus students' rights to freedom of speech "are not automatically coextensive with the rights of adults in other settings." Morse, 551 U.S. at 396–97 (internal quotation marks and citations omitted).

The Supreme Court first expressed this principle nearly a half century ago. In 1965, the United States deployed over 200, 000 troops to Vietnam as part of Operation Rolling Thunder—and thus began the Vietnam War. That war "divided this country as few other issues [e]ver have." Tinker, 393 U.S. at 524 (Black, J., dissenting). Public opposition to the war made its way into schools, and in one high-profile case, a group of high-school and middle-school students wore black armbands to express their opposition. Id. At 504 (majority opinion). School officials adopted a policy prohibiting the armbands and suspending any student who refused to remove it when asked. Id. Some students refused and were suspended. Id. The Supreme Court upheld their right to wear the armbands. Id. at 514. Tinker held that school officials may not restrict student speech without a reasonable forecast that the speech would substantially disrupt the school environment or invade the rights of others. Id. at 513. As nothing more than the "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on [the students'] part, " the students' armbands were protected by the First Amendment. Id. at 508.

Under Tinker's "general rule, " the government may restrict school speech that threatens a specific and substantial disruption to the school environment or that "inva[des] . . . the rights of others."[9] Saxe v. State College Area Sch. Dist., 240 F.3d 200, 211, 214 (3d Cir. 2001) (citing Tinker, 393 U.S. at 504). Since Tinker, the Supreme Court has identified three "narrow" circumstances in which the government may restrict student speech even when there is no risk of substantial disruption or invasion of others' rights. Id. at 212. First, the government may categorically restrict vulgar, lewd, profane, or plainly offensive speech in schools, even if it would not be obscene outside of school. Fraser, 478 U.S. at 683, 685. Second, the government may likewise restrict speech that "a reasonable observer would interpret as advocating illegal drug use" and that cannot "plausibly be interpreted as commenting on any political or social issue." Morse, 551 U.S. at 422 (Alito, J., concurring); see also id. at 403 (majority opinion) ("[T]his is plainly not a case about political debate over the criminalization of drug use or possession.").[10] And third, the government may impose restrictions on school-sponsored speech that are "reasonably related to legitimate pedagogical concerns"—a power usually lumped together with the other school-specific speech doctrines but that, strictly speaking, simply reflects the government's more general power as sovereign over government-sponsored speech.[11] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

The first exception is at issue here. We must determine the scope of the government's authority to categorically restrict vulgar, lewd, indecent, or plainly offensive speech under Fraser. Fraser involved a high-school assembly during which a student "nominated a peer for class office through an 'an elaborate, graphic, and explicit sexual metaphor.'" Saxe, 240 F.3d at 212 (quoting Fraser, 478 U.S. at 677). Fraser's speech "glorif[ied] male sexuality":

I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm. . . . Jeff Kuhlman [the candidate] is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts, he drives hard, pushing and pushing until finally—he succeeds. . . . Jeff is a man who will go to the very end—even the climax, for each and every one of you. . . . So vote for Jeff for A.S.B. vice-president—he'll never come between you and the best our high school can be.

Fraser, 478 U.S. at 687 (Brennan, J., concurring). In response, "[s]ome students hooted and yelled; some by gestures simulated the sexual activities pointedly alluded to in [Fraser's] speech." Id. at 678 (majority opinion). Still "[o]ther students appeared to be bewildered and embarrassed by the speech." Id. The school suspended Fraser and took him out of the running for graduation speaker. Id.

The Supreme Court upheld Fraser's suspension. Id. at 683. Rather than requiring a reasonable forecast of substantial disruption under Tinker, the Court held that lewd, vulgar, indecent, and plainly offensive student speech is categorically unprotected in school, even if it falls short of obscenity and would have been protected outside school. Saxe, 240 F.3d at 213 (discussing Fraser); Morse, 551 U.S. at 405 ("Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected."); Fraser, 478 U.S. at 688 (Blackmun, J., concurring) ("If [Fraser] had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate."). For this proposition, the Court relied on precedent holding that the government can restrict expression that would be obscene from a minor's perspective—even though it would not be obscene in an adult's view—where minors are either a captive audience or the intended recipients of the speech. See Fraser, 478 U.S. at 684–85 (relying on Ginsberg v. New York, 390 U.S. 629, 635–37 & nn.4–5 (1968) (upholding criminal punishment for selling to minors any picture depicting nudity); Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870 (1982) (plurality opinion) (acknowledging that the Free Speech Clause would allow a local board of education to remove "pervasively vulgar" books from school libraries); and FCC v. Pacifica Found., 438 U.S. 726, 749–50 (1978) (rejecting a Free Speech Clause challenge to the FCC's broad leeway to regulate indecent-but-not-obscene material on broadcast television during hours when children were likely to watch)).

Fraser did no more than extend these obscenity-to-minors[12] cases to another place where minors are a captive audience—schools. Indeed, as the Court explained, schools are tasked with more than just "educating our youth" about "books, the curriculum, and the civics class." Id. at 681. Society also expects schools to "teach[] students the boundaries of socially appropriate behavior, " including the "fundamental values of 'habits and manners of civility' essential to a democratic society." Id. at 681, 683 (citation omitted). Consequently, Fraser's "sexually explicit monologue" was not protected. Id. at 685.

It is important to recognize what was not at stake in Fraser. Fraser addressed only a school's power over speech that was plainly lewd—not speech that a reasonable observer could interpret as either lewd or non-lewd. See, e.g., Doninger v. Niehoff, 527 F.3d 41, 49 (2d Cir. 2008) ("[Fraser's] reference to 'plainly offensive' speech must be understood in light of the vulgar, lewd, and sexually explicit language that was at issue in [that] case."); Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 530 (9th Cir. 1992) (interpreting Fraser as limited to "per se vulgar, lewd, obscene, or plainly offensive" school speech). After all, the Court believed Fraser's speech to be "plainly offensive to both teachers and students—indeed to any mature person."[13] Fraser, 478 U.S. at 683.

And because it was plainly lewd, the Court did not believe that Fraser's speech could plausibly be interpreted as political or social commentary. In hindsight, it might be tempting to believe that Fraser's speech was political because it was made in the context of a student election. Cf. Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 898 (2010) (describing the importance of political speech as the "means to hold officials accountable to the people"). But that kind of revisionist history is belied by both the logic and language of Fraser. "Fraser permits a school to prohibit words that 'offend for the same reasons that obscenity offends.'" Saxe, 240 F.3d at 213 (quoting Fraser, 478 U.S. at 685). Obscenity, in turn, offends because it is "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." Fraser, 478 U.S. at 683 (quoting Pacifica Found., 438 U.S. at 746 (plurality opinion)). In other words, obscenity and obscenity to minors, like "other historically unprotected categories of speech, " have little or no political or social value. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1585 (2010). By concluding that Fraser's speech met the obscenity-to-minors standard, the Court necessarily implied that his speech could not be interpreted as having "serious" political value. Miller, 413 U.S. at 24.

In fact, the majority in Fraser made this explicit. "[T]he Fraser [C]ourt distinguished its holding from Tinker in part on the absence of any political message in Fraser's speech." Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 326, 328 (2d Cir. 2006). In the Court's own words, there was a "marked distinction between the political 'message' of the armbands in Tinker and the sexual content of [Fraser's] speech." Fraser, 478 U.S. At 680 (emphasis added); see also Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 332 (6th Cir. 2010) ("Tinker governs this case because by wearing clothing bearing images of the Confederate flag, Tom Defoe engaged in 'pure speech, ' which is protected by the First Amendment, and thus Fraser would not apply."). Several courts of appeals have similarly interpreted Fraser. Guiles, 461 F.3d at 326, 328; Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 256 (4th Cir. 2003) (explaining that Fraser "distinguish[ed] Tinker on the basis that the lewd, vulgar, and plainly offensive speech was 'unrelated to any political viewpoint' (quoting Fraser, 478 U.S. at 685)); Chandler, 978 F.2d at 532 n.2 (Goodwin, J., concurring) (concluding that Fraser does not apply because "this case clearly involves political speech"). And the Supreme Court later characterized Fraser's reasoning the same way. Morse, 551 U.S. at 404 (noting that Fraser was "plainly attuned" to the sexual, non-political "content of Fraser's speech"). In fact, Morse refused to "stretch[] Fraser" so far ...

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