Gavel to Gavel: Staying abreast of free speech
By Tom Wolfe | January 13, 2011
What do breast cancer fundraising bracelets that proclaim “I (heart) boobies!” and the First Amendment have in common? Just ask any attorney in Philadelphia – one of several jurisdictions hotly debating this very issue.
On one side: High school students who wear the popular, colorful bracelets to honor a loved one or to raise breast cancer awareness.
On the other side: Administrators who want to ban the bracelets in public schools, claiming the slogan is vulgar and disruptive.
So, who’s likely to win this free-speech battle?
If worn for the nonprofit Keep A Breast Foundation’s stated purpose of raising young people’s awareness of breast cancer, the bracelets should not be disruptive or cause heartburn for school officials. Alternatively, if worn by some, such as boys, for another purpose – to be amusing, edgy, lewd or rude – should the bracelets be banned?
Surprisingly, there are U.S. Supreme Court cases that provide some guidance.
The first is a 1969 decision concerning high school students suspended for wearing black armbands, in protest of the Vietnam War. The Supreme Court held that students may express opinions on controversial subjects, such as Vietnam, if done without interfering with school operations.
A 1986 case involved a high school student suspended for making a speech full of sexual double-entendres, but no obscenity. His speech nominating a classmate for Associated Student Body vice president began: “I know a man who is firm – he’s firm in his pants, he’s firm in his shirt, his character is firm.”
Our nation’s highest court was firmly unamused. It upheld the suspension, saying it is the function of public school to prohibit the use of “vulgar and offensive terms in public discourse” – not a violation of the First Amendment.
The third is a 2007 decision popularly known as the “Bong Hits 4 Jesus” case, where a creative group of students designed and displayed a banner bearing the controversial slogan at a public rally, which class had been let out to attend. The court was not high on the students’ behavior, finding that the principal – who suspended the group – had the power to safeguard students from a message that “could reasonably be regarded as encouraging illegal drug abuse.”
So, putting these three cases together, how does it shape up for those who “(heart) boobies”?
Political speech is nearly always protected. However, two of these cases should cause some concern for bracelet wearers – an indicator of the court’s current stance on public school speech of a cryptic, somewhat humorous nature. This kind of tongue-in-cheek speech may not be entitled to the same First Amendment protection as serious speech.
However, to the extent that any of the quoted cases portend one way or another, should “I (heart) boobies!” make it all the way to the Supreme Court, keep in mind that the makeup of the court has changed considerably since those decisions came down.
In lieu of rock lyrics this month, I leave you with the quote that comes to mind on the topic of the First Amendment: Former political candidate Christine O’Donnell, who – when told by her Democrat opponent during a debate that the First Amendment bars Congress from making laws respecting the establishment of religion – stated, “You’re telling me that’s in the First Amendment?”
Tom Wolfe is a civil litigator who serves as president and managing partner of Phillips Murrah P.C. in Oklahoma City.