Ohio middle school girls are free to wear “I love boobies” bracelets at school following a ruling by a Federal District Court Judge for the Eastern District of Pennsylvania. The court stated that “a school may categorically prohibit speech that is (1) lewd, vulgar, or profane; (2) school-sponsored speech on the basis of a legitimate pedagogical concern; and (3) speech that advocates illegal drug use. If school speech does not fit within one of these exceptions, it may be prohibited only if it would substantially disrupt school operations.”
The Judge reasoned that the speech (the “I love boobies” bracelet) was neither vulgar (Bethel School Dist. v. Fraser) nor disruptive (Tinker v. Des Moines). The case is now on appeal to United States Court of Appeals for the Third Circuit
In the meantime, we are left to wonder what if middle school boys wore “I love balls” bracelets to raise awareness of testicular cancer? Or, what if the boys wore “prostrates are precious” to raise awareness of prostrate cancer? Would they be considered vulgar? Disruptive to school operations? Maybe. We all know balls and prostrates aren’t as catchy as boobies.
Does the wearer of the bracelet (the speaker) made a difference in the analysis? Rather than two middle school girls, what if the football team began wearing “I love boobies” bracelets? Would a quarterback’s motives for wearing the bracelet have any impact upon the vulgar / disruptive analysis? It shouldn’t but it probably would.
Let’s return to the love of women’s body parts. At a recent rock concert there was a booth that sold “I love vagina” bracelets to promote a line of clothing. If middle school girls began wearing the bracelets to raise awareness of cervical cancer, would the Pennsylvania court find the bracelets to be constitutionally protected? Or, are body parts below the waist considered vulgar?
The appellate court will rule soon.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.