So holds B.H. v. Easton Area School Dist. (3d Cir. Aug. 5, 2013). Here’s the Introduction (some paragraph and numbered list breaks added):
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:
- 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,
- 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
- 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.