David L. Hudson, Jr.: A victory for student speech, but will it be Pyrrhic?

  Two middle-school female students at a Pennsylvania public school had a First Amendment right to wear "I Love Boobies" bracelets, because those bracelets were not plainly lewd, did not substantially disrupt school activities and did not invade the rights of others.

  Such was the ruling of the majority of the full 3rd U.S. Circuit Court of Appeals in B.H. v. Easton Area School District (2013), a case closely watched in the student-speech community.

  This surely was the correct result and is cause for some celebration. After all, the girls purchased the bracelets with their mothers to support the fight against breast cancer and in recognition of breast-cancer awareness in general. The bracelets were not lewd or vulgar or even comparable to Matthew Fraser’s speech with sexual references to a captive audience of more than 600 students in Bethel School District v. Fraser (1986).

  Furthermore, the bracelets did not create anything close to a substantial disruption that the Supreme Court talked about in its famous black peace armband case in Tinker v. Des Moines Independent Community School District (1969). There were only a few isolated incidents where a few boys immaturely giggled at the bracelets or mimicked the word "boobies." This was, at most, a minor disruption. Equally clear, the bracelets didn’t invade anyone’s rights under Tinker. A few people may have been offended, but a hallmark tenet of free-speech law is that the First Amendment protects much offensive and disagreeable speech.

  This is the good news.

  The bad news is that in reaching its result the majority may have overcomplicated matters. All that the majority needed to do was what the federal district judge had done last year – find that the bracelets were not plainly lewd under Fraser or substantially disruptive under Tinker.

  Instead, the appeals court majority undertook a dissection of the Fraser case in connection with the Supreme Court’s most recent student-speech case – Morse v. Frederick (2007). Morse – better known as the "Bong Hits 4 Jesus" case – involved a student who displayed the "bong hits" message off-campus, as the Olympic torch-relay was passing through the public streets near his Juneau, Alaska, school. In Morse, Chief Justice John G. Roberts Jr. determined that the First Amendment does not protect student speech that school officials reasonably believe promotes illegal drug use. Four other justices signed on to his opinion, making it a majority opinion.

  However, Justice Samuel A. Alito Jr. – joined by Justice Anthony Kennedy – wrote separately. Alito reasoned that he agreed with the majority opinion but understood it to mean that a student had a free-speech right to talk about the legalization of marijuana or engage in other political speech about the legalization of drugs.

  The 3rd Circuit majority said Alito’s opinion was really the controlling opinion in Morse, and then used this reasoning to dissect the Fraser case. According to the majority, public school officials can freely regulate student speech that is categorically lewd or vulgar and may be able to "categorically restrict ambiguous speech that a reasonable observer could interpret as lewd, vulgar, profane or offensive – unless … the speech could also plausibly be interpreted as commenting on a political or social issue."

  The majority is certainly correct when it writes that "Fraser is not a blank check to categorically restrict any speech that touches on sex or any speech that has the potential to offend." However, the majority is on shakier ground in pronouncing that Alito’s opinion in Morse is the controlling opinion and the analytical prism for its decision.

  Most other courts have determined that Roberts’ opinion is controlling, rather than Alito’s separate concurring opinion. One of the dissenting opinions in the bracelet case (there were two) points out that Roberts’ opinion commanded five votes.

  The majority did not need to rely on Alito’s concurring opinion of two to reach the result that it did. Roberts himself limited the Fraser opinion in Morse, writing: "Fraser should not be read to encompass any speech that could fit under some definition of offensive. After all, much political and religious speech might be perceived as offensive to some."

  The bottom line is that the 3rd Circuit majority most assuredly reached the correct result. These bracelets were not even close to being vulgar or disruptive. But the majority employed some questionable reasoning. This could turn this student-speech triumph into a Pyrrhic victory.

  About the author: David L. Hudson Jr. is an expert in First Amendment issues who writes for firstamendmentcenter.org and for other publications. Hudson teaches law and was a scholar at the First Amendment Center. He is the author or co-author of more than 30 books, including several on the U.S. Supreme Court, the Constitution and student rights.

  This article was published by the First Amendment Center.