*1 remaining We have considered Fahs’s
arguments unpersuasive. find them
Accordingly, judgment of the District
Court is AFFIRMED.
B.H., Minor, by through her
Mother; HAWK; K.M., Jennifer a Mi- through Amy Mother;
nor her
McDonald-Martinez
EASTON AREA SCHOOL
DISTRICT, Appellant.
No. 11-2067. Appeals,
United Court of States
Third Circuit.
Argued April 2012.
Rehearing En Banc Ordered
on Aug. 2012.
Argued En Banc Feb. 2013.
Opinion Aug. filed: *4 Collins,
Keely Freund, J. John E. III Tucker, [argued], Jeffrey T. King, Spry, Herman, Faul, Bethlehem, PA, Freund & Appellant. for Kreimer, University Seth F. Pennsyl- Law, vania School of Mary Catherine Roper [argued], American Civil Liberties Pennsylvania, Molly Union of M. Tack- Hooper, Berger Montague, & Philadel- PA, Walczak, phia, J. Witold American Union, PA, Civil Pittsburgh, Liberties Appellees. Fields, Pennsylvania
Sean A. School Association, PA, Boards Mechanicsburg, for Amicus Appellant. Wicks,
Rory Sirota, Gary Encinitas, L. CA, CA, Amy Arroyo, Carlsbad, R. Frank *5 LoMonte, D. Laura Napoli, Student Press Center, VA, Arlington, Law Wilson M. Brown, III, Deal, Kathryn Drinker, E. Reath, Pollock, Wayne Biddle & Dechert LLP, Fromson, Terry Tracey, L. Carol E. Cohen, Project, Women’s Law David L. PA, Philadelphia, for Amici Appellees. McKEE, Before: Judge, Chief SLOVITER, RENDELL, SCIRICA, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, JR., GREENAWAY, VANASKIE, and GREENBERG, Judges. Circuit OPINION SMITH, Judge, Circuit with whom McKEE, SLOVITER, Judge, Chief SCIRICA, RENDELL, AMBRO, FUENTES, FISHER, VANASKIE, join. Judges Circuit again, Once we asked to find the right balance between a student’s to free speech and a school’s need to control its case, educational environment. two purchased middle-school students brace- bearing slogan lets “I boobies! ¥ BREAST)” (KEEP substantially to the bracelets threatened part of a national A ly disrupt breast-cancer-awareness under Tinker. We will recognized Dis Easton Area School campaign. The therefore the District Court. affirm bracelets, its relying trict banned Bethel School District No. authority under I. Fraser, 675, 106 S.Ct.
v.m background A. Factual (1986), vulgar, to restrict L.Ed.2d 549 lewd, speech, plainly offensive profane, focused “leading youth global As authority under Tinker v. Des and its Keep A organization,” breast cancer Community Independent School Moines to thir- Breast Foundation tries educate District, to women thirty-year-old teen- about (1969), to restrict L.Ed.2d 731 Amicus breast cancer. Br. of Curiae substantially to dis reasonably expected end, part- KABF at it often 13. To The held rupt the school. District Court ners with merchants to co-brand other rights ban violated students’ that the products raise awareness. be- And to and issued a preliminary free young “neg- cause believes that women’s injunction against the ban. body seriously image[s]” ative inhibit their cancer, the awareness of breast Founda- the District agree
We products “seek[ ] nor Tinker can sustain the tion’s often reduce the neither Fraser scope by au- stigma young people a school’s in a speaking bracelet ban. lewd, vulgar, thority profane, they voice can relate to.” Id. 14-15. If plainly speech under Fraser is young offensive projects women see such awareness by open Supreme left question novel products trendy, as cool and the think- Court, we re- and one which must now ing goes, more willing then will be hold that as modified solve. We openly. talk about breast cancer reasoning later Court’s *6 To “start a conversation about that ta- Frederick, Morse v. in a light-hearted way” boo and to break (2007), up L.Ed.2d 290 sets keeping young down inhibitions women (1) lewd following plainly framework: self-examinations, from performing speech, for the offends same reasons Foundation its “I ini- began ¥ Boobies!” offends, obscenity may categorically be re- tiative. 20-21. Part of cam- Id. at regardless of whether it comments stricted paign selling silicone included bracelets issues, (2) speech on or social that political assorted emblazoned with “I colors ¥ plainly to the level of lewd does not rise BREAST)” (KEEP Boobies! A and “check but observer could inter- that a reasonable BREAST).” (KEEP y¥urself! A Id. pret may categorically restrict- as lewd be 21-22. The Foundation’s website address plausibly ed cannot inter- long as as it (“art. (www.keep-a-breast.org) and motto preted commenting political on or social education, awareness, action.”) appear on (3) issues, that does not rise to the inside of the bracelet. Id. plainly lewd and that could level intended, As “I Boobies” ¥ initiative commenting on plausibly women, quickly a hit young be- social issues not be cate- coming Foundation’s suc- one of the “most Because gorically restricted. the bracelets educational cam- high profile cessful and plainly they here lewd and because issue, young Two of paigns.” Id. at 20-21. they may comment on a social not be the bracelets were mid- banned under The women drawn to categorically Fraser. They dle-school B.H. and K.M. School District has also failed to show students with their mothers purchased bracelets such incidents “happened before year—B.H. before the 2010-2011 the bracelets” and were “going happen “a lot of because she saw friends [her] after the bracelets” because “sexual curios- wearing” the bracelets wanted learn ity boys girls between in the middle them, K.M. of the about because school is ... a natural and continuing popularity and awareness mes- bracelet’s thing”). 72, 92,106, sage. App. In mid- to September, late four or five just But the bracelets were more than eighth-grade teachers asked the assistant purchase new fashion trend. K.M.’s Braxmeier, principal, Amy they whether prompted her to become educated about require should students to remove the in young girls breast cancer women. The bracelets. seventh-grade assistant wore their bracelets both to commemorate principal, Anthony Viglianti, told the friends and relatives who had suffered they teachers that should ask students to from to promote breast cancer and aware- remove “wristbands that have word Indeed, among ness their friends. their them,” ‘boobie’ written App. even bracelets started conversations about though reports there were no breast cancer and did so far more effec- tively than the more-traditional bracelets pink any rib- had caused in-school disrup- App. bon. 73-74. That made sense to tions or inappropriate comments.1 B.H., who observed that “no really one With Breast Cancer Awareness Month ribbon, pink notices” the whereas the October, approaching school administra- “bracelets are new and ... appealing more anticipated tors “I V boobies! to teenagers.” App. 74. (KEEP BREAST)” A might bracelets re- B.H., K.M., and three other students appear.2 The school was scheduled to ob- (KEEP wore the “I V boobies! A serve Breast Cancer Awareness Month on BREAST)” bracelets at Easton Area Mid- day before, October so the administra- dle during School the 20102011 school announced, publicly time, tors for the first year. teachers, A few after observing the the ban on containing bracelets the word every day students wear the bracelets Using “boobies.” the word “boobies” weeks, several considered whether announcement, his Viglianti notified stu- should take action. The respons- teachers’ public-address dents of the ban over the es varied: One found the bracelets offen- system, and student did the same on the *7 sive because trivialized breast cancer. school’s television station. The Middle Others feared that might bracelets encouraged School still students to wear lead to offensive comments or inap- invite the traditional pink, provided and it teach- propriate touching. But school adminis- ers who donated to for Susan G. Komen trators also believed that middle-school pin bearing the Cure with either a boys did not need the bracelets as an slogan “Passionately Pink for the or excuse to make sexual Cure” statements or to See, engage inappropriate reading T-shirt “Real touching. Rovers Wear e.g., Viglianti Test., App. (testify- Pink.” publicly
1. In mid-October before the permits ban was 2. The Middle School students to wear announced, school (KEEP administrators received yVurself "check Foundation’s A reports inappropriate some unrelated BREAST)” bracelets. touching, but neither the word "boobies” nor the bracelets were considered cause of these incidents. security guard disciplined “disrespect,” “defi- day, being a school
Later ance,” wearing “I boobies! and “disruption.” an V B.H. noticed BREAST)” (KEEP and or- bracelet A quickly News of the bracelets reached it. B.H. refused. to remove dered her the rest of Easton Area School Dis- Braxmeier, B.H. re- meeting with After trict, which instituted a district-wide ban bracelet, returned lented, her removed (KEEP BREAST)” “I A on the V boobies! any disruption occurred at to No lunch. bracelets, effective November day. time reported incident The bracelet-related K.M. each following day, B.H. and The occurred weeks school administrators (KEEP A “I boobies! wore their V girls Two after the district-wide ban: were BREAST)” the Mid- bracelets to observe their at lunch talking about bracelets when Breast Awareness dle School’s Cancer interrupted boy who overheard them lunch- day The was uneventful—until Day. something said like “I want boobies.” He cafeteria, girls were in the both time. Once gesture an inappropriate also made with security guard to by a school instructed boy spherical two red candies. admit- girls re- their bracelets. Both remove comment “rude” and was suspend- ted his encounter, another Hearing this fused. day.3 ed for one R.T., similarly girl, up and refused stood was not time the This the first Middle by this take off her bracelet. Confronted clothing had that it School banned found solidarity, security guard per- act Indeed, distasteful. the School District’s then- girls eating to finish mitted policy prohibits “clothing dress-code im- to Braxmei- escorting lunches before them nudity, obscenity, printed vulgarity, caused Again, girls’ office. actions er’s pictures profanity, and entendre double cafeteria, though disruption no in the R.T. slogans.”4 policy, Under seventh- imma- boy had told Braxmeier one grade students at the Middle School have also turely either that he commented clothing promoting been asked remove her “love[d] boobies” that he “love[d] Grill, Big Bar & Hooters Pecker’s boobies.” clothing phrase bearing well as “Save girls, spoke Braxmeier all three (another the ta-tas” breast-cancer-aware- R.T. to remove her bracelet. B.H. agreed slogan). Typically, ness students are disci- firm, however, their citing stood and K.M. if plined only they actually refuse to re- rights to freedom of The Middle offending move the when apparel asked none having School administrators were so. do They by giv- it. K.M. punished B.H. and days of in- each of them one and a half history B. Procedural suspension by forbidding them mothers, The ad- their B.H. attending Through from the Winter Ball. and K.M. families, ex- under 42 notified sued the School District U.S.C. girls’ ministrators ¶ 3, Compl., § plaining only that and K.M. were 1983.5 ECF No. B.H. v. B.H. *8 place, 4. B.H. and assert a chal- 3.After the district-wide ban was K.M. do not facial constitutionality lenge to the of the dress-code there were several incidents of middle-school policy. they boys inappropriately touching girls, but (KEEP unrelated to the A were “I V boobies! federal-question 5. The District had both Court BREAST)”bracelets. jurisdiction § under 28 U.S.C. 1331 and jurisdiction § under U.S.C. 1343(a)(3). Republican § See Max Comm. Dist., No. suggested Easton Area Sch. 5:10-CV- there “ever phrase T (E.D.Pa. 2010). (Heart) Nov. 06283-MAM Boobies!’ is meant sexy.” They sought temporary restraining or- end, App. 150. To that the Foundation attend the allowing der them to Winter requests had denied from truck stops, con- injunction against a preliminary Ball and stores, venience vending machine compa- B.H. v. the bracelet ban. Easton Area nies, and pornographers to sell the brace- (E.DJPa. Dist., F.Supp.2d Sch. lets. 2011). urging, At the District Court’s After evidentiary hearing, the Dis- per- District reversed course and School trict preliminarily enjoined Court mitted B.H. and K.M. to attend the Winter School District’s According bracelet ban. retaining option impose Ball while Court, to the District B.H. and K.M. were if comparable punishment the bracelet ban likely to succeed on the merits because the upheld. Id. The District ac- bracelets did not contain lewd un- cordingly the motion for a tempo- denied der Fraser and did not threaten to sub- rary restraining order. Id. stantially disrupt the school environment The District Court conducted an eviden- under Tinker. The District Court could tiary hearing on the request prelimi- for a find no other basis for regulating the stu- nary injunction. It soon became clear that dent at issue. The School District District’s rationale disciplin- School for appealed, and the District Court denied its Although B.H. and K.M. had shifted. request stay injunction pending this disciplinary B.H.’s and K.M.’s letters indi- appeal. they cated being disciplined were “defiance,” “disrespect,” “disrup- tion,” ultimately the School District based II. policy6 the ban on its dress-code together Although the District Court’s alleged with the bracelets’ sexual innuen- preliminary injunction order, is not a final According do. to the School District’s wit- jurisdiction we have under 28 U.S.C. nesses, the School princi- Middle assistant 1292(a)(1), § grants appellate juris pals had conferred and concluded that the “[ijnterlocutory diction over orders of the “conveyed bracelets a sexual double enten- granting, district courts ... continuing, confusing dre” could be harmful and modifying, refusing, dissolving injunc to students of different physical and sexual tions.” Sypniewski See v. Warren Hills developmental levels. Sch. Disk's Br. at 9. Educ., Reg’l Bd. 252 n. 10 And the principals believed that middle- (3d Cir.2002). students, We review the District who often have immature sex, error, factual particularly likely findings views of were Court’s for clear its novo, interpret way. legal the bracelets that For its conclusions de and its ultimate part, explained the Foundation grant injunc- no one decision to the preliminary (3d Cnty., Lancaster [having] 199 n. 1 word "can be "breast” construed as Cir.2009). App. a sexual connotation.” 497. At the evidentiary hearing, District Court’s re- 6. Even the Middle School administrators Viglianti "keep-a- versed course. stated that prohib- seemed unsure which words would be breast.org” appropriate would be "[i]n deposed, ited the dress code. When Vi- Month,” context of Breast Cancer Awareness glianti principal Angela DiVietro testified longer phrase and DiVietro no believed the (as apparel stating that the word "breast” vulgar “breast cancer awareness” was to mid- "keep-a-breast.org” or cancer "breast aware- dle-school students. ness”) inappropriate would be because the *9 302 explain, Fraser involved appear. discretion. Id. at 252. As we abuse of
tion for
that,
We
prelimi-
plainly
lewd
hold
determine whether
Four factors
also
categori-
under
a school
appropriate:
nary injunction is
cally
speech that—although
not
(1)
movant has a reason-
whether the
lewd, vulgar,
profane—could
or
be
plainly
merits;
success
probability
able
interpreted by a
as
reasonable observer
(2)
irrepara-
movant will
be
whether
lewd,
long as
vulgar,
profane
so
it could
denying
injunction;
bly
harmed
plausibly
not also
be
as com-
(3)
harm
greater
there will
whether
menting
or social
Be-
on a
issue.
if
nonmoving party
injunction
(KEEP A
cause the “I V boobies!
(4) whether
granted;
granting
is
BREAST)”
plainly
are not
lewd
bracelets
public
in the
interest.
injunction is
a national
express support
breast-
(quoting Highmark,
Id.
Inc. v. UPMC
campaign-—unquestion-
cancer-awareness
(3d
Plan, Inc,
276 F.3d
170
Health
ably
issue—they may
an important social
Cir.2001)). The District Court concluded
categorically
not be
restricted under Fra-
weighed
factors
in favor of
that all four
ser.
cases,
In school-speech
and K.M.
B.H.
first factor—-the likelihood of
though, the
Supreme
A. The
Court’s decision in
success on the merits—tends to determine
Fraser
factors
way
the other
fall.
Id.
matter,
general
First
“[A]s
here,
258. Because the same
true
we
government
Amendment means
has
on B.H. and KM.’s burden to
focus first
power
no
expression
to restrict
because of
of success on the merits.
show likelihood
ideas,
matter,
subject
message,
its
its
its
Id.
ACLU,
or its content.”
v.
535
Ashcroft
III.
573, 122
152
U.S.
L.Ed.2d
(2002).
course,
there are excep
The School District defends the bracelet
Of
authority
acting
sovereign,
ban
an
of its
to re-
tions.
as
gov
exercise
When
lewd,
time,
vulgar, profane,
plainly
empowered
impose
strict
of-
ernment
place,
As
on speech,
fensive student
under Fraser.
and manner restrictions
Racism,
question
scope,
Against
to the novel
Fraser’s
see Ward v. Rock
781, 791,
jurists
on one
agree
thing:
seem to
L.Ed.2d
“[t]he
(1989),
reasonable,
analysis employed
is not
make
mode of
Fraser
content-based
Morse,
entirely
clear.”
U.S. at
decisions about what
is allowed on
point,
government
think
property
fully open
S.Ct. 2618.7 On
we
that is
public,
to the
Ark.
Supreme
student-speech
Court’s
cases
see
Educ. Television
Forbes,
666, 674-75,
than they may
more consistent
first Comm’n v.
Cir.2011) (“The
Supreme
governing
law
The rest of
Court’s student-
restrictions on
might
jurisprudence
fairly
confusing,
de-
can be difficult
lawyers,
professors,
opaque.
judges.
See
U.S. at
even for
law
scribed as
(Thomas, J., concurring)
Supreme
Court cases
303
1633,
(1998),
118 S.Ct.
And because
explicit.
[C]ourt
Fraser
distin
“[T]he
the Court did not believe that Fraser’s
in
guished
holding
part
its
from Tinker
on
speech
plausibly
could
commentary.
any political message
absence of
in
political or social
In hind
Fraser’s
ex rel.
sight,
tempting
speech.”
it
believe that
Guiles
Guiles v.
might be
(2d
Marinean,
320, 326,
political
was
because
461 F.3d
Cir.
Fraser’s
2006).
words,
was
in the context of a
own
made
student elec-
In the Court’s
there
course,
dear,
"Frankly, my
speech might
give
"damn”
I
”seem[]
Of
Fraser’s
in
don’t
distinctly lacking
today, espe
value”
in shock
damn” "shocked the Nation” when Justice
cially
by
perspective
"from the
enabled
high
Stevens
school student but had
years of erosion of refinement in the use of
by the
become "less offensive”
time of Fra-
language.” Zamecnik v. Indian Prairie Sch.
ser). Any
change
perspective,
such
howev-
(7th
Dist.
636 F.3d
Cir.
No.
er, is irrelevant
to our examination of the
Fraser,
2011);
see also
U.S. at
interpretation
Court's
of Fraser’s
J.,
(Stevens,
dissenting) (noting
S.Ct. 3159
reasoning.
its
famous use
Clark Gable’s
of the word
political
was a “marked distinction between the
involves
speech”). And the Su-
political
‘message’ of the armbands
preme Court
later characterized Fraser's
Tinker and the sexual content of
reasoning
[Fra-
way.
same
speech.”
at
ser’s]
Sch. B. How authority far does a school’s that Fraser (explaining “distinguished] under Fraser extend? Tinker on the basis that lewd, vulgar, plainly offensive was ‘unrelated The School District asks us to extend ” (quoting Fra- any political Fraser viewpoint’ least ways: two to reach *14 ser, 3159)); 478 U.S. at speech lewd, S.Ct. that is ambiguously vulgar, or Chandler, (Goodwin, 978 F.2d at n. 2 profane speech and to reach political on or J., concurring) (concluding that Fraser social issues.14 step justified, The first is does not apply clearly because “this case but the second is not. way:
14. Fraser differs from this case in a third
recipients
ence or the intended
of the
speech
Fraser
just
involved
at an official
captive
school
Children are
as much of a
audi-
assembly,
cafeteria,
whereas
the School District's
hallways,
ence in the
or locker
day,
bracelet ban
extends to the entire school
rooms as
are in official school assemblies
just school-sponsored
then,
not
functions. But like
and
Naturally,
classrooms.
we have
appeals,
other courts of
we do
authority
not think that
never
a
described
school’s
under
See, e.g.,
this difference
being
matters.
R.O. ex rel.
Fraser as
limited to official school func-
Dist.,
See,
J.S.,
City
Ochshorn v. Ithaca
533,
e.g.,
Sch.
645 F.3d
and
tions
classrooms.
650 F.3d
(2d Cir.2011) ("[W]e
("The
have not inter
exception
first
is set out in
preted
Fraser,
regulation
Fraser as limited either to
interpreted
permit
which we
school
'lewd,'
school-sponsored speech
‘indecent,’
spoken
regulate
or to
‘vulgar,’
officials to
word.”); Chandler,
(conclud
(em-
'plainly
epithet
just
parlance”
“common
2. Fraser
that,
permit
concluding
does not
the motion-to-dismiss
school to
ambiguously
restrict
stage,
apply).
Fraser did not
lewd
plausibly
that can also
be inter-
Although
highly
this is a
contex
preted
commenting
as
on a social
inquiry,
apply.
tual
several rules
A rea
political
issue.
sonable
would not adopt
observer
an aeon-
A
leeway
school’s
categorically
interpretation,
subjective
textual
ambiguously
restrict
speech,
lewd
howev
speaker
intent of the
is irrelevant. See
er,
ends when that
could also plau
Morse,
401-02,
U.S.
S.Ct. 2618
sibly
interpreted
expressing
a view
(explaining
ap
that Frederick’s desire to
political
on a
or social issue. Justices Alito
on
pear
description
television “was a
Kennedy’s
concurrence in Morse
displaying
motive for
[his]
banner”
adopted
protection
a similar
and “not an interpretation of what
could be
illegal
sa[id]”);
Saxe,
banner
see also
drug advocacy. Their narrower rationale
at 216-17 (noting that students’ intent to
protecting political speech limits and con
Tinker).
disrupt
satisfy
offend or
does not
Morse,
majority opinion
trols the
and it
And Fraser is not a blank check to cate
applies
greater
with even
ambigu
force to
gorically
any speech
that touches
ously
lewd
any speech
sex or
that has
poten
tial
concurrence,
to offend. See
Justice Alito’s
joined by
401, 409, 127
(refusing
Kennedy,
S.Ct. 2618
provided
Justice
the crucial
*16
Fraser” so far as “to encom
“stretch[]
fourth and fifth votes in the five-to-four
pass any speech that could fit under
majority opinion.
justices
some
But
the two
definition of
rejecting
‘offensive’ and
the
conditioned their votes on the “under-
(1)
argument
that
the
standing
“BONG HiTS 4 JE
that
majority opinion]
[the
message
SUS”
on Frederick’s banner
goes no further than to hold that a public
could be banned under
may
even school
restrict speech that a reason-
though it
no
“is
doubt
interpret
offensive to
able observer would
as advocat-
”);
(2)
Volokh,
some”
Eugene
May
illegal
accord
ing
drug
provides
use and
it
no
Homophobe’
‘Jesus Is Not a
support
any
T-shirt Be
for
restriction of speech that
High
Banned From Public
In
plausibly
interpreted
School As
can
be
comment-
as
‘Sexual’?,
decent’ And
ing
any political
The Volokh Con
on
or social
issue.”
4, 2012,
PM),
spiracy (Apr.
http://
3:36
551 U.S.
S.Ct. 2618
ambigu
non-political advocacy
majority opinions
holdings
lation of
determine
standing at
drug advocacy
(not
“as
illegal
just
ous
plurality opinions involving “no
First Amend
of what the
the far reaches
single legal
explaining]
rationale
the re-
“join[ing]
opinion
the
permits”
ment
sult”)
jus-
to
dissenting
count even
understanding
the
that the
the Court
that,
definition,
by
tices’ votes
could
any further ex
opinion
not endorse
does
(not just
the
“explain
result”
votes of
tension”).
Alito’s
purpose
The
of Justice
judgments”).16
those who “concurred in the
political
to
that
concurrence was
“ensur[e]
Johnson,
See United States
F.3d
protected within the
remain
will
Cir.2006)
(1st
(noting
Supreme
that the
(subject,
always,
setting”
away”
has
from adhering
Court
“moved
principle).
substantial-disruption
Tinkers
Marks).
the strict circumstances in
Dist., 508
Indep.
Ponce v. Socorro
Sch.
it makes
that the
And
sense
limitations
(5th Cir.2007).
Alito’s
in Justice
concurrence would nar-
Alito
Because the
of Justices
votes
majority
an
opinion.
row the
When
indi-
necessary
major
Kennedy
were
justice’s
vidual
is not needed to
vote
form
ity opinion
expressly
and were
conditioned
majority,
meaning
majority
“the
of a
understanding
narrower
that
their
opinion is to be
within the opinion
found
plausibly
because
an
gloss
itself’
“the
that
individual
commentary was
from cat
protected
social
it
[j]ustice
upon
chooses to place
is not
egorical regulation,
limitation
Carolina,
McKoy
authoritative.”
v. North
of Morse. This conclusion
binding part
494 U.S.
448 n.
minor detour.
most famil
requires a
The
(1990) (Blackmun, J.,
L.Ed.2d 369
concur-
iar
the nar
situation
which we follow
justice
ring).
joins
But when an individual
by
t
expressed
rowest rationale
majority
and is essential to maintain-
Supreme Court Marks v. United States:
ing
majority,
separate-
and then writes
single
explaining
“no
rationale
when
ly,
opinion
majority
“the
not a
opinion
Justices,
enjoys the assent of five
result
to the
except
extent that
accords with
viewed as
holding
Court
his views.” Id. at 462 n.
311 necessary that adopted majority opinion member of the Breyer’s and Justice case, majority.” linchpin concurrence, Id. In that we followed the latter be- justice’s common views are “the least de- narrower, cause it just Fifth, was as the necessary major- nominator” to maintain a Sixth, Seventh, Eighth, and Ninth Cir- Id.; ity generally Sonja see R. opinion. 175-76; cuits had done. Id. see also West, Concurring Concurring in Part and Medtronic, 573, Martin v. 254 F.3d 581- Confusion, in the 104 Mich. L.Rev.1951 (5th Cir.2001); Medtronic, Kemp v. (2006) (advocating the approach same 216, (6th Cir.2000); 231 F.3d Mitchell that explaining it is consistent with deter- Collagen Corp., 902, v. 126 F.3d 911-12 mining precedent from the traditional Su- (7th Cir.1997); Tambrands, Papike v. preme seriatim opinions). Court’s (9th Inc., Cir.1997). 107 F.3d In so, doing rejected
Indeed,
we
our dissenting col-
this is not the first time that
league’s argument
that
compelled
majori-
we have been
to limit a
narrowest-
grounds approach
ty opinion by
linchpin justice’s
“simply
narrower
inapplica-
Thoratec,
concurrence.
ble” because
Breyer joined
Horn
we
Justice
Part V
regulation
majority
considered whether the federal
of the
opinion and that the “cor-
preempts only
of medical devices
state-
rect course of action” in the event of a
“requirement^]”
specific
law
to medical
conflict “would be to follow Part V as the
preempts general
devices or also
com-
Horn,
majority opinion.”
312 (distinguishing Alexan- Horn, notwith- 376 at 174-75 approach in we took basis). der dissenting argu- colleague’s standing our follow the of should breadth ment that we brings us back Justice Alito’s Which ignore and the nar- opinion majority the linchpin jus- in Morse. The concurrence because “Justices rower concurrence tices in Alito Kenne- Morse—Justices and Kennedy joined in the [ma- O’Connor joining their the dy—expressly conditioned (Becker, J., Id. at 591 jority] opinion.” majority interpreta- a narrower opinion on dissenting part). concurring part tion of that it did not opinion—namely, the dissenting colleague ex- As even our permit that could the restriction the narrower views plained, we followed plausibly or so- Kennedy because Justices O’Connor known they cial Had that lower the they [of an intermediate bloc “form[ed] ignore courts would their narrower under- Lopez view as case- majority] which would standing majority opinion—or of the had Bishop Horn and specific.” Id. And majority opinion expressly gone the far- See, only examples. e.g., limitations—then, not United the their by ther than their Monclavo-Cruz, 1285, admission, 662 F.2d they joined States v. own would not have Cir.1981) (9th (relying on narrow- That majority opinion. the would have five-justice majority majority opin- to the transformed the given construction Powell, three-justice plurality opinion, ion into a was also a opinion by who Justice concurring becoming with their views majority, of the to limit necessary member grounds narrowest under an controlling v. majority’s holding South Dakota Marks application uncontroversial Opperman, 428 U.S. S.Ct. then, Why, doctrine. should it matter (1976)); v. United States L.Ed.2d 1000 formally joined majority they whether (8th Cir.1980) Wilson, opinion or not? (similar). Ignoring It should not. limitations sure,
To be
placed
majority opinion
on the
a neces-
a linch
involving
once
a case
said—in
sary
majority
member of the
would mean
courts
pin concurrence—that
federal
majori-
that four
could “fabricate
justices
a
give
precedential
“much
should not
ty by
a fifth to their
binding
interpretation
if it
weight”
concurring opinion,
even
say,
though
of what
writes
even
he
majority opinion.
Alex
coheres with
explain his own more narrow
separately to
Sandoval,
n.
ander v.
understanding.” McKoy, 494
at 462
U.S.
1511, 149
(2001);
L.Ed.2d
see
S.Ct.
(Scalia, J., dissenting).
n.
S.Ct.
Hillery, 474
Vasquez
also
produces
That
If a
inexplicable anomalies.
(1986)
n.
313 and the fifth member’s narrower views rence are binding on us.17 Morgan See v. Swanson, (5th evaporate. approach places 359, Cir.2011) Such an all of 659 F.3d (en banc) weight J.) its on the distinction between a (majority Elrod, opinion of justice’s to follow his (describing choice name with Justice Alito’s Morse concur- “concurring” “concurring instead of in rence “controlling”); see Morgan also part” “concurring judgment.” Dist., in the Indep. 740, Plano Sch. 589 F.3d Cf. West, (5th Cir.2009) (“We Concurring Concurring in Part and n. 25 have held Justice Confusion, 104 Mich. L.Rev. at Alito’s concurrence to controlling be the (explaining why 1953-54 opinion Ponce, these “after the (citing Morse.” 508 F.3d 768)). phrases comma” cannot bear such weight); Pelham-Webb, Note, Powelling Tristan C. Justice Alito protected would have politi- ” Concurrences, “Binding Precedent: cal or social reasonably interpreted 693, Ann. N.Y.U. Surv. Am. L. use, to advocate illegal drug pro- (2009) (same). That elevates formalism applies tection even strongly more to am- expense over substance at the of ignoring biguously lewd In very conditions on which a necessary Court added a new categorical exception to majority expressly member of the chose to Tinker, that a reasonable
join
majority.
observer could interpret as advocating ille-
short,
because
gal
Justice Alito’s concur
drug use but that
plausibly
cannot
provides
single legal
rence
“a
...
interpreted
standard
as addressing political or social
when properly applied, produce[s]
422,
[that]
issues.
Id. at
exception
“stances]
—
1207,
Phelps,
U.S. —131
S.Ct.
per-
what the First Amendment
reaches of
1215,
(2011)
425,127
(quotation
L.Ed.2d 172
2618.
mits.” Id. at
S.Ct.
omitted);
marks and citations
see also
“grave”
a
and
speech posing
If
such
145,
138,
Myers, 461
Connick v.
U.S.
physical safety
the
of
“unique threat
to
(1983)
1684,
S.Ct.
75 L.Ed.2d
categorically regulated
can be
students”
(“[S]peech
public
occupies
on
the
issues
“plausibly
it cannot
be inter-
only when
highest rung
hierarchy
of the
of First
any political
commenting on
or
preted as
values,
spe
Amendment
entitled to
is
regulation
that
nonethe-
social issue”—and
(internal
protection.”
cial
quotation marks
reaches
the far
of what
“stand[s]
less
omitted)).
And it is
citations
a
permits”—then
First Amendment
the
to
exception
limited
otherwise “bed
why ambiguously
no reason
lewd
there is
rock
of the
principle”
First Amendment
protection
any less
speech should receive
prohibit
that
government may
“the
not
it
“can
be
plausibly
when
also
expression of an idea
soci
simply because
commenting
any political
on
social
ety
the idea
finds
itself offensive
dis
issue.” Id. at
S.Ct. 2618.
Johnson,
agreeable.”
Texas
U.S.
not be
of
philosopher
One need
a
Mill or
397, 414,
109 S.Ct.
who
unwilling
permit
were
Consequently, we hold that the Fraser
*21
categorical exception to Tinker that would exception
permit
does not
ambiguously
political
intrude on
or social speech and
speech
lewd
to be categorically restricted
justices20
two
who all but said much.
as
if it
plausibly
can
interpreted
be
politi-
as
more,
What’s
this limitation is consistent
cal or
speech.
social
previous
with our
intuitions as well as
Fraser,
may
3. Under
schools
restrict
those of the Sixth and Second Circuits.
plainly
speech regardless
lewd
of
Saxe,
J.)
(Alito,
See
F.3d at 213
(noting
plausibly
whether
it could
be in-
“dichotomy”
between Fraser and
terpreted
political
as social or
“neatly
Tinker is
by
illustrated
the com-
commentary.
parison between Cohen’s [“Fuck the
jacket
armband”);
Draft”]
and Tinker’s
As
Supreme
Court made clear
Defoe,
Fraser,
same reasons
essential
category
adopted
is “no
appeals
in that
some courts of
and thus
of ideas”
any exposition
part
interpretation
of the
that broad
Id.
very “slight social value.”
See,
carries
e.g.,
student-speech cases.
Court’s
(quoting
Dist., 257 F.3d
v. Blaine Sch.
LaVine
Pacifica
Found.,
Cir.2001)
(9th
(“[A]
school need
obscenity
As with
(plurality opinion)).
that is inconsistent
tolerate
minors,
and all other
obscenity
general,
mission.”); Bo
with its basic educational
categories
unprotected
historically
Educ., 220
City
Wert
Bd.
Van
roff
over-
“the
to be restricted so
speech,
evil
(6th Cir.2000) (“[Wjhere
Bo
in-
expressive
outweighs the
whelmingly
symbols
contain
and words
roffs T-shirts
stake,
terests,
any,
process
that no
if
patently
promote values that are so
required” be-
adjudication is
case-by-case
mis
contrary to the school’s educational
*22
interests
competing
of
cause “the balance
sion,
authority, under
the School has the
Stevens,
at
130 S.Ct.
clearly struck.”
is
case,
prohibit
circumstances of this
the
Ferber,
458
(quoting New York
1585-86
].”).
[under
those T-shirts
Fraser
3348,
763-64,
747,
73
102 S.Ct.
U.S.
(1982)).
senti-
words,
the face value of those
we Whatever
In other
L.Ed.2d
ments,
sweeping
in a
determina-
such
and total deference
engage
case-by-case
not
do
obscenity to minors—and
the
incompatible
tion of whether
school officials is
extension,
under
plainly
speech
Tinker,
by
lewd
teachings.
Court’s
In
Supreme
result,
value. As
Hazelwood,
Morse,
Fraser—carries social
Supreme
the
plainly
may
regulate
continue to
schools
the mean-
independently evaluated
Court
lewd,
speech
vulgar, profane, or offensive
ing of the student’s
and the reason-
speech
even if a
instance
particular
under Fraser
interpretation
of the school’s
ableness
interpret-
can
speech
“plausibly
such
of
There is no reason the school’s
actions.
or social
commenting
any political
on
ed
authority
spe-
under
should receive
Fraser
Morse,
at
127 S.Ct.
issue.”
U.S.
treatment.
such an
importantly,
cial
More
(Alito, J., concurring).
would
the other student-
approach
swallow
cases,
Tinker, effectively
speech
including
recites a
response,
District
School
judicial
eliminating
review of student-
schools
providing
mantra that has Fraser
Guiles,
restrictions.
speech
See
define what is
the ultimate discretion to
(making
point).
pre-
That is
Supreme
It
at 327
vulgar.
relies on the
lewd
in Morse
may
cisely why
schools
define
Court’s sentiment that
rejected
to school
pro-
explicitly
total deference
their “basic educational mission”
inconsistent
is
officials:
hibit
308, 326,
106 S.Ct.
95 S.Ct.
43 L.Ed.2d
See also
478 U.S. at
(‘‘[T]he
("It
(1975)
what manner
determination of
is not
role of the federal courts
speech in the
or in school as-
of
classroom
administrators
to set aside decisions of school
sembly
inappropriate properly rests with
lacking
a basis
which the court
view as
board.”); Pico,
school
457 U.S.
compassion.”);
see also Kuhl-
in wisdom
("[FJederal
should not
The
the Court does not en-
lets in this case—will encourage students
argument
dorse the broad
advanced
engage
egregiously
more
sexualized
petitioners and the United States that
advocacy campaigns, which the schools will
permits public
the First Amendment
obliged
to allow. See Pa. Sch. Bd.
any
officials to
school
censor
student Ass’n
in Supp.
Amicus Br.
of Appellant at
speech that
interferes
awith
school’s
(listing
examples, including “I V Balls!”
“educational mission.” ... The “edu-
apparel
cancer,
for testicular
and “I ¥ Va
argument
cational mission”
give
would
Jay Jays” apparel for the Human Papillo-
public
sup-
school authorities a license to
maviruses); App.
(raising
pos-
275-76
press
on
political and social is-
sibility
apparel
bearing
slogans
“I ¥
disagreement
sues
based
with the
Titties!”).
Balls!” or “I ¥
Like all slip-
viewpoint expressed.
argument,
pery-slope arguments, the School District’s
therefore,
very
strikes
heart of point can be
equal
inverted with
logical
the First Amendment.
If
force.
categorically
schools can
regu-
Instead,
issue,
Morse settled on a nar
schools could eliminate all student
deference, deferring
rower view of
touching on sex or merely having
judg
administrator’s “reasonable
potential
to offend. See Frederick
sign qualified
ment
that Frederick’s
as Schauer, Slippery Slopes, 99 Harv. L.Rev.
drug advocacy” only if
could
(1985) (“[I]n
361, 381
virtually every case
*23
plausibly
be interpreted as comment
in which a slippery slope argument
is
political
on a
or social issue.
made, the opposing party
equal
could with
(Stevens,
S.Ct. 2618
formal
linguistic logic
and
also make a
J.,
dissenting); see also id. at
claim.”).
slippery slope
The ease of turn-
(“[Sjchools
(majority opinion)
S.Ct. 2618
ing a slippery-slope argument on its head
[may]
expression
restrict student
explains why
persuasiveness
of such a
reasonably regard as promoting illegal
depend
contention does not
logical
on its
use.”);
drug
id. at
today’s (7th Cir.1988) words, States, because isolated utterances “[e]ven banc) J., (en (Easterbrook, dissenting). vulgar in ... pander[ing], can be made hypothetieals pro- “The terror extreme shocking manners” and can thus “con- law,” so our to much bad answer duces first stitute harmful to children” blow[s] “extreme hypotheti- District’s the School (alterations original)). in The same is true bridge “cross that will we cal[s]” drawings figures of a student’s of stick to Id. when we come it.” positions, promote sexual even if used to rel. contraceptive use. R.O. ex Ochs- worse, the School Dis- To make matters Cf. City City horn Dist. v. Sch. Ithaca School supposedly slippery greased has trict Dist., (2d Cir.2011). 645 F.3d omitting any empirical evidence. slope by ques- if engage And even students more think either that the no reason to We have gov- tionable the school retains the speech, students will be parents of middle-school authority ap- allow children to wear normal willing sovereign their ernment’s advocating or social mes- parel regulate speech as well its additional egregious or that sages terms powers as educator to restrict un- the typical Tinker, See, overcome middle-schooler’s Kuhlmeier, will der and Morse. embarrassment, immaturity, social e.g., Heyward, Hardwick v. apparel. such And
pressures wearing (4th Cir.2013) that a (holding school’s hypothetieals many of School District’s prohibition wearing depicting T-shirts our A pose no worries under framework. permissi- battle flag Confederate restrict an “I categorically school could V history ble under Tinker of a because (KEEP BREAST)” A bracelet.be- tits! racial related disruptions tension cause, explained flag). the Confederate (and also Pacifica, presum- the word “tits” By contrast, support there empirical “titties”) is a ably patently the diminutive schools, opposite worry. for the if Some organs offensive reference to sexual so, empowered might to do eliminate all thus obscene minors. See Pacifica *24 speech touching merely on sex or Found., 745-46, 98 438 U.S. at S.Ct. 3026 Indeed, to having potential offend. that (plurality opinion) (explaining the co- Middle School’s administrators seemed in- George “dirty” seven median Carlin’s just initially clined that. They to do testi- words, “tits,” which for includes “offend “breast,” fied that could ban the word offends”); obscenity reasons the same even if in the a used context of breast- LaVine, (conclud- F.3d at 989 see also campaign, cancer-awareness because the a of ing poem imagery “filled word, itself, by “can be as [hav- construed “vulgar, and was not violent death suicide” a ing] App. sexual connotation.” lewd, obscene, or offensive plainly because If anything, slippery the fear of a elaborate, slope graphic, ‘an it was “not ” against cuts the School District. as was the explicit metaphor’ sexual stu- Fraser, nor speech dent’s it con- [did] vein, In a similar we need not the infamous words that cannot
tain
seven
speculate
hypotheti
airwaves”);
context-dependent
on
public
be said on the
FCC
cf.
Stations, Inc.,
eals
give guidance
to
to schools
dis
v. Fox Television
556 U.S.
517-18,
trict
lines of
courts. The fault
our
L.Ed.2d
S.Ct.
(2009)
adequately mapped
out
arbitrary
it was
framework
(concluding
regulate
jurispru
for
of First
capricious
the FCC to
even
rest
Amendment
excretory
obscenity-
uses
dence. The
“isolated
of sexual
Court’s
(2008)
(“[P]erfect
to-minors case law marks the
of
contours
clarity
precise
See,
plainly
speech.
e.g.,
lewd
Brown v. guidance have never been required even
—Ass’n,
U.S.-,
Entm’t Merchs.
regulations
of
expressive
restrict
ac-
(refus-
2729, 2735,
the bracelets B.H. and were course, every day one of four nearly K.M. had worn them for addition, school-specific regulating months. the Middle avenues for stu- two speech.23 parties rightly agree School used term “boobies” in an- dent slogan (identifying exception 22. Because we that the is not S.Ct. 2618 a new to the conclude plainly plausibly interpreted lewd and is as that is Tinker framework reason- issue, commenting the bracelets on a social ably interpreted advocating illegal drug as use result, protected As a we under Fraser. plausibly that is com- need not whether a ob- determine reasonable issue). menting any political or social slogan interpret server could the bracelets’ *26 ("Fraser Compare 2618 id. at lewd. analysis that the mode of set forth established absolute.”), id. at 127 Tinker is not recently 23. As the has reaf- ("And, like [Kuhlmeier] S.Ct. 2618 firmed, might exceptions there be other only rule is not the confirms that the of Tinker by yet that the Tinker have not been identified 408-09, restricting speech.”), with courts. See U.S. at 127 basis for student id. (Black, J„ apply: that and Morse do not U.S. at Kuhlmeier dissenting). reasonably believe that no one could the Middle School was somehow involved Here, disruption the record of morning
the
fashion decisions of a few even skimpier.
the School
When
District
students,
reasonably
could
in-
and no one
ban,
announced the bracelet
it had no
advocating illegal
terpret
the bracelets
more than an “undifferentiated fear or re
drug use.
apprehension
mote
Syp
of disturbance.”
Sch.
boys
she believed some
had remarked to
(en
(“[T]he
banc)
District
School
need not
girls
about their
relation to
“boobies”
prove
certainty that
with absolute
substan
bracelets—an incident
was never
occur.”).
tial disruption will
The School
B.H.,
F.Supp.2d
confirmed.
District
of showing
has the burden
that the
other,
In the
two
students
female
were
bracelet
ban
constitutional under Tink
lunch,
discussing
during
the bracelets
J.S.,
er. See
323
prong,25
of-others
the School District does
right
their
speech,
freedom of
why
explain
the bracelets would breed
“unquestionably
irreparable
constitutes
in
an environment of pervasive and severe
jury.” K.A.
Ayers
ex rel.
v. Pocono
See, e.g.,
harassment.
DeJohn v. Temple
Dist.,
(3d
99,
Mountain Sch.
710 F.3d
113
(3d
Univ.,
Cir.2008)
537 F.3d
320
Cir.2013) (quoting
Burns,
Elrod v.
427
(“[U]nless
qualified
harassment
is
with a
347, 373,
49 L.Ed.2d
standard akin to a severe or pervasive
(1976)
547
(plurality opinion)). An after-
requirement,
policy
[an anti-]harassment
money
the-fact
judgment
hardly
would
may suppress
protected speech.”);
core
up
make
for their
opportunity
lost
to wear
Saxe,
V.
as the “Save the ta-tas” T-shirt or testicu
Because the School District’s ban
apparel
lar-cancer-awareness
bearing the
pass
cannot
scrutiny under
phrase
Fraser or
“feelmyballs.org.”
in
Whether the
Tinker, B.H.
likely
and K.M.
junction stays
to suc
goes,
the School District
ceed on the merits.
In light of that con will have to continue making individualized
clusion,
remaining preliminary-injunc
assessments of whether
tion factors also favor them. The ban
consistent with the First
prevents
Amendment,
B.H. and
exercising
K.M. from
just as school administrators
noted,
IX,
repeatedly
precise
As we have
"the
"harassment” under Title
the School Dis-
scope
rights
of Tinker’s 'interference with the
any explanation
trict has not offered
or evi-
Saxe,
language
of others'
is unclear.”
passively wearing
dence of how
the "I V
Tinker,
(quoting
F.3d at 217
(KEEP BREAST)”
boobies!
A
bracelets would
733);
Univ.,
Temple
DeJohn v.
pervasive
create such a severe and
environ-
(3d Cir.2008).
F.3d
And the Su-
Saxe,
ment in the Middle School.
Cf.
preme
squarely
Court has "never
addressed
(Alito, J.) ("There
categori-
F.3d at 204
is no
harassment,
whether
when it lakes the form
exception’
cal
‘harassment
to the First
pure speech,
exempt
from First Amend-
clause.”);
Amendment’s free
Rodri-
Saxe,
protection.”
ment
have
Bd.,
it is
Cnty.
good
multiplication
Sch.
v. Madison
citizen
about
na ex rel. Rewt
*29
Cir.2001) (“The
(6th
history.”).
543
tables and
States
246
United
F.3d
Supreme
the
of
three
foregoing discussion
challenges,
envy
do not
We
those
impor-
the
... cases demonstrates
“to
nu-
require school administrators
make
in
factual
school
tance of the
circumstances
difficult
merous
decisions about
to
when
”).
District Court’s
speech cases....
on
public
restrictions
our
place
injunction against the bracelet ban does
Swanson,
Morgan v.
schools.”
not
that.
change
(5th Cir.2011)
banc)
(en
(majority
420
J.).
Elrod,
of
opinion
And the School Dis-
Lastly, granting
preliminary
unreasonably
trict
this case was not
injunction
public
interest.
furthers
“I
permitting
concerned that
V boobies!
injunc
that the
argues
The School District
(KEEP
BREAST)”
in this
A
bracelets
“authority manage
to
its
tion
its
eliminates
might
mes-
require
permit
case
to
other
thus harms the
population”
sages
sexually
that were
oriented in na-
Again,
at 61.
public. Appellant’s Br.
teaching
ture. But schools cannot avoid
the narrow
hyperbolic protest
ignores
citizens-in-training
injunction,
appropriate-
our
how
breadth
which addresses
of
navigate
of
constitutionality
ly
“marketplace
of the bracelet
ideas.”
letting
might
ban
the facts of this case. More
Just because
in one idea
under
judgment
even
importantly, allowing a school’s unconstitu
invite
more difficult
calls
tional
to continue “vindi
justify suppress-
restriction
about other ideas cannot
K.A., 710
public
ing speech
genuine
cates no
interest.”
F.3d
of
value. Tink-
social
omitted).
(citation
er,
(“The
For
rea
these
at
U.S.
Fraser or
conduct occurred before
had
the Court
“high
speech”
value
modification of Fraser
Miller, they
pro
decided
argued that due
following
on the
premises
is based
two
cess
them “to jury
entitled
instructions not
Supreme
the
decision
derives from
Court’s
Miller,
under
but
favor
under the more
Frederick,
393,
in
v.
Morse
U.S.
[obscenity]
able
formulation of
v.
Memoirs
2618,
(2007): first,
ment of five Jus- established ‘ “great implies must exercise be- agreement.” courts restraint’ Alexander v. Sando- val, court have over- Congress fore a finds 285 n. despite power” (2001). its commerce Lo-
stepped
way,
L.Ed.2d
Put another
revolutionary holding. Bishop, 66
pez’s
“holding
a majority
is not made coexten-
(quoting Lopez,
F.3d at 590
sive with the concurrence
ma-
because [the
J.,
(Kennedy,
Horn,
L.Ed.2d
2926,
Minnesota,
417,
event,
speech
at a
that
110. S.Ct.
school
when
(1990).
Casey, 947
reasonably
promoting illegal
I also find speech that can to their care from decided, ed nine of ten years since Morse reasonably encouraging as il- regarded be holding have cited its appellate courts as ” drug Ayers K.A. ex rel. v. legal use.’ following standard articulated Chief Dist., in his for the Pocono Mountain Sch. 710 F.3d opinion Roberts Justice omitted).2 (3d Cir.2013) (citation may, This principal consistent “[A] Court: Niehoff, regarded encouraging Doninger reasonably v. can as 1. See 642 F.3d be ” (citation omitted)); (2d ("[T]he Cir.2011) illegal drug de use.’ Red- Court has ding public steps v. Sch. Dist. No. schools 'take termined that Safford Unified (9th Cir.2008), safeguard rev’d on other those their care entrusted to grounds, regarded reasonably from that can (2009) ("[S]chools L.Ed.2d 354 can 'restrict illegal drug encouraging because of use' expression they reasonably re- student special nature of school environment ” (cita- gard promoting illegal drug use.’ posed by drug dangers use.” student omitted)); tion Corder Lewis Palmer Sch. (citations omitted)); rel. Hard Hardwick ex (10th Cir. Dist. No. 566 F.3d (4th Heyward, Cir. wick v. 2009) (“[A] public may prohibit stu- 2013) (”[S]chool regulate officials can school-spon- dent at school or plausibly interpreted as that can during event sored school hours that illegal drugs dan *33 promoting of 'the because ” 'reasonably promoting as ille- view[s] school omitted)); (citation gers drug illegal use.’ ” (citation omitted)); drug gal Boim v. 324, use.’ Spiva, ex v. rel. 625 F.3d Defoe Defoe Dist., 978, Cnty. Fulton 494 F.3d 984 Sch. (6th Cir.2010) ("As Court has 332-33 (11th Cir.2007) ("[T]he special characteristics however, already recognized, hold the Morse govern- of the school environment and one, ing determining more narrow no drug stopping mental interest in student may a public prohibit than that school student ... abuse allow schools restrict student expression school-sponsored at school or at expression they reasonably regard pro- that as during 'rea events school hours that can be ” (citation omitted)). illegal moting drug use.” (ci sonably drug promoting viewed as use.’ omitted)); tation Zamecnik v. Indian Prairie (7th opinion Majority Sch. Dist. No. 636 F.3d 877 ex rel. 2. The cites our in J.S. Cir.2011) Dist., (noting promoting use of Snyder that "the v. Sch. F.3d Blue Mountain 650 (3d Cir.2011), illegal drugs, advocacy "previ in the [is] form as evidence that we 915 prohibited setting without ously” that can be had Alito's the "intuition” that Justice (citation omitted)); disruption” Supreme evidence of Court's concurrence controls Maj. v. Dist. opinion Typescript D.J.M. ex rel. D.M. Hannibal Pub. Sch. in at 313 Morse. Cir.2011) K.A., (8th J.S., explicitly we No. 647 F.3d Butin as in noted n.17. ("Chief special the Court’s "held 'the Justice Roberts reviewed that the that approach prior in before hold these decisions characteristics of the school environment drug safeguard governmental stopping steps ‘that take interest in schools expres- their care that abuse allow schools to restrict student those entrusted to from they that widespread proof doing consensus further so made it majority opinion opinion, majority Chief Justice Roberts’s merely, and not as the plaintiff believes concurrence, (as not Justice Alito’s is the con- Circuit, does the Fifth Ponce v. So- trolling in Morse. opinion Independent District, corro School (5th Cir.2007)), F.3d a plurality only the today,
Before
Fifth Circuit had
The
opinion.
concurring Justices want-
Morgan
held
See
In-
otherwise.
Plano
emphasize
ed to
that in
(5th
allowing a school
Dist.,
dep.
Sch.
746 n.
student
Cir.2009)
forbid
(“We
encourages
have held Justice Alito’s
of illegal drugs
the use
the Court was
opinion
concurrence
the controlling
to be
giving
not
schools
regu-
carte blanche to
(citing
Indep.
Morse.”
Ponce v. Socorro
late
Dist.,
(5th
they
And
were ex-
Sch.
508 F.3d
Cir.
pressing their
2007)));
permissi-
own view of the
Morgan,
see also
589 F.3d
ble
of such
scope
regulation.
holding
n. 15
(interpreting
Morse to
may regulate
be “that
schools
Nuxoll ex rel. Nuxoll v. Indian Prairie
a reasonable
would interpret
observer
as
#204,
(7th
Sch. Dist.
advocating illegal drug use and that could
Cir.2008)
(citation
added)
(emphasis
omit-
not
any
as
commenting
ted). This interpretation of the relation-
(internal
quotation
or social issue”
ship between Justice Alito’s concurrence
omitted)).3 However,
marks
the Fifth Cir-
majority
opinion
in Morse is the
cuit
any
did not cite Marks or
“nar-
other
correct one because it is faithful to Marks
jus-
grounds”
provided
rowest
case and
no
progeny.
and its
tification to
its
support
conclusion
stated,
Justice Alito’s concurrence is
For the reasons
I
the control-
would not read
ling opinion in Morse. As the Seventh
Justice Alito’s
as altering
concurrence
aptly
circumscribing
Circuit has
noted:
a majority opinion for the
joined
Thus,
he
Court that
plaintiff
toto.
calls Justice Alito’s concur-
holding
Court’s
remains
“controlling” opinion
rence the
in Morse
Morse
the fa-
miliar articulation that has been
Kennedy
because Justices Alito and
consis-
stated,
tently
by
time
part
majority,
again,
were
of a five-Justice
so
this Court
other
eight
Appeals:
their votes were crucial to the deci-
Courts of
“[A]
joined
they
majority
may,
sion. But
principal
consistent
the First
opinion,
decision,
Amendment,
just
restrict student
at a
”
reasonably
regard
promoting
promoting
drug
sion that
illegal
view[s]
use’
as the
”
illegal drug
(emphasis
holding.”
use.’
F.3d at 927
“narrow
Court’s
school 562, 260, 108 98 illegal drug use.” 484 U.S. S.Ct. L.Ed.2d 592 ably promoting viewed as (1988), Morse, 403, 127 held that administrators U.S. at S.Ct. 551
may regulate speech
school-spon
that is
B
reasonably
sored or could
be viewed as the
272-73,
at
108
speech.
school’s own
Id.
Alito’s
is not the
If Justice
concurrence
recently,
562. Most
Morse the
S.Ct.
Morse, Majori-
“controlling” opinion in
may
to
steps
Court held that “schools
take
by
ty
legal
engrafting
has
error
committed
safeguard those entrusted
their care
political”
his
“social or
regarding
dicta
speech
reasonably
that can
be re
from
commentary
upon
a limitation
the abili-
illegal
garded
encouraging
drug
use.”
regulate speech that runs
ty of schools to
Morse,
at
551 U.S.
tial
(internal
so,
added)
of
we
quotation
any
doing
issue.
Instead
such
(emphasis
disavowing
omitted).
mean,
applied the
test while
This
not
as
Fraser
does
marks
relevance Morse.
Majority suggests, that
carve-outs
Maj. Typescript
narrow one another. See
fact that courts have maintained
The
927).
J.S.,
F.3d at
(citing
n.17
at 313
among
different
analytical separation
Rather,
recognition
a
that
simply
makes
because
Tinker carve-outs
sense
spheres.
separate
their
are narrow within
for a
Court created each one
Indeed,
especially
have been
careful
courts
In K.A. we addressed
unique purpose.
the narrowness of the
to underscore
that enable school
these “vital interests
See, e.g., Defoe,
in
holding Morse.
Court’s
officials to exercise control over student
(“[T]he
holding
F.3d
Morse
at 332-33
in
of a substantial
even
the absence
one, determining no more
a narrow
K.A.,
School message meaning could into the bracelets and tiffs’ awareness read lewd laudable does not ren- from bracelets why discerned conceded that she understood bracelets, ban unconstitu- der District’s the School might want to ban only expresses B.H., tional. “I V boobies!” F.Supp.2d at and other stu- can- afflicted with breast support for those parroted phrase on the bracelets dents cer, attraction to conveys a sexual but also conveying while sexual attraction the female breast. Another school has breasts. administrator here concluded that bracelets issue facts indicate that
It is true that certain by sexualizing cause of “elicit attention of the “I ¥ boo interpretation a sexual Prairie, breast cancer awareness.” Sauk edge outer may be bies!” bracelets Crabb, ll-cv-622, at 4. as Judge No. And inter how a observer would reasonable judge other federal to consider obviously, speech. Most the bracelets pret Prairie, bracelets, put these Sauk always modify phrase the “I ¥ boobies!” BREAST)” “(KEEP vulgarity sexuality” A or other “hints of messages. provoke “attract breast-cancer-awareness bracelets attention and *40 conversation, reads the entire it phrase, ploy “When one is for a that is effective clearly message designed promote a to target audience of immature [KABF’s] cancer awareness.” K.J. Sauk breast Fi- middle students.” Id. at 15. [school] Dist., 11-cv-622, op. slip No. Prairie Sch. nally, Equality the Gender amicus brief 2012). (W.D. Addition Wis. Feb. out, ubiquitously are sexual- points breasts ally, did immedi school administrators not ized in American culture. ately vulgar recognize the bracelets as Area princi- Easton Middle School lewd; wearing students had been the willingness say to to the pals’ “boobies” bracelets for two months before were imply entire school audience does not that banned, guid had to request and teachers meaning; the word does not have a sexual to ance on whether and how deal with the merely suggests it is not “boobies” Moreover, bracelets. the school itself was Moreover, plainly although lewd. KABF’s compelled to use over the word “boobies” its products decision not market public tele system the address and school through porn stops stars and at truck pro vision station order to describe the laudable, organizations the interest such bracelets, suggests that scribed which the in the have shown bracelets is further patently word alone is not offensive. by evidence that bracelets are read Notwithstanding supporting the facts many to a meaning. contain sexual And case, I “I boo- Plaintiffs’ conclude that ¥ the “I ¥ cancer boobies!” bracelets’ breast reasonably bies!” can message overwhelming is not so obvious or inappropriate sexual double entendre. eliminate as to For double entendre. context, phrase the middle school can many thing, one the bracelets come in “I support mean both breast-cancer-aware- pink widely colors other than the shade of ness measures” and “I am attracted to against fight associated with the breast Many female and thir- breasts.” twelve- cancer.
teen-year-old susceptible children Additionally, although Plaintiffs and juvenile messages sexualization of argue language a their amici that the casual would be innocuous to reasonable adult. Indeed, ac- at least one bracelet-wearer of the “I boobies!” bracelets is intended ¥
(alterations, citations, omitted)). quota- tion marks internal ing, more opining phrases make breast cancer issues accessi- that such would not girls inappropriate and less for and be stigmatized signifi- ble school. Also women, that does not un- cant is the fact young purpose that the Easton Area Mid- of a sexual inter- dle School plausibility has not stifled the message dermine awareness; Nor of the bracelets. does the breast cancer pretation course of these Plaintiffs’ mothers were a robust cancer fact breast awareness cam- purchase paign merely permissible not the bracelets happy imposed re- teenage their also to striction on daughters way but that message Saxe, expressed. them render bracelets wear immune See 240 F.3d at (“Fraser regulation. The mothers’ in- 213 speaks from to the form and man- convey ner of speech, tent bracelets breast- not its substance. message, like expression, cancer-awareness Plaintiffs’ It addresses the mode motive, (citation subjective in- own is irrelevant to its content or viewpoint.” omit- ted)). meaning of the terpreting
Likewise, the District Nor School administra- position Plaintiffs’ saved beliefs, subjective expressed phrase tors’ at the fact that the “I V boobies!” was during litiga- time the ban and later “chosen to enhance the effectiveness of the tion, my do not affect determination of target communication to the audience.” B.H., it is to in- objectively F.Supp.2d whether reasonable 406. The District from meaning strategic fer sexualized the brace- Court’s focus on purpose lets. Their failure to use the words the words used in and format the bracelets “lewd,” “indecent,” “vulgar,” “plainly misguided. indecency If permit- were *41 is to in offensive” not fatal their claim of ted schools because merely it was in- regulatory authority. Similarly, some tended to goal, advance some laudable principals’ testimony regard- inconsistent Matthew Fraser’s would have been constitutionally what other protected breast-eancer-related insofar as he in- they phrases might censor does not make tended to win the attention of his class- phrase advocating issue here more or less mates while the election of his Therefore, not vulgar. probative it is friend. intermittently administrators indicated Finally, if we to hold that were they thought by the word “breast” message cancer here any breast makes impermissible has an sexual itself connota- reading sexual of the bracelets unreason-
tion. able, obliged permit schools would be to rely Plaintiffs on the initial statements more egregiously advocacy sexual mes- sages. teachers at the school middle that the As Ms. acknowledged, DiVietro any “breast” bodily parts word alone context and the “other in the human anatomy ... phrases get “breast cancer awareness” and ... can cancer and other types of slang also “keep-a-breast.org” could be banned terms” have to be would condoned. argue App. to that the School District the specter has left DiVietro raised convey no other to “I to slogan support them means their an V Balls” testicular message. But breast-cancer-awareness cancer awareness. Id. 275-76. These banned—indeed, examples words were not speculative. those stu- are not The Testi- permitted Project dents are wear to KABF’s cular Cancer Awareness sells (KEEP BREAST)” yVurselfl! A “feelmyballs” encourage “check bracelets male changed general bracelets-and the administrators self-examinations and awareness. position prior evidentiary Project, their hear- Testicular Awareness See Cancer for our responsible educating of those na- http://www.feelmyballs.org/shop/front.php 2013). (last youth. respect, middle tion’s I dissent. If With visited June right a have constitutional school students JR., GREENAWAY, Judge, Circuit bracelets, it would “I
to wear V boobies!” CHAGARES, dissenting, with whom limiting principle to articulate be difficult JORDAN, HARDIMAN and catchy these other that would disallow GREENBERG, join. aimed long so as were phrases, objective. socially some beneficial My colleagues today have determined ambiguous phrase that “I is an ¥ boobies” stated, cor- the District Court Simply may an attraction to female connote proper rectly articulated the standard breasts, protec- falls but which under implicate to be cases that applied review tion of First Amendment in middle (such one), strayed it as this but Fraser may plausibly school context because evaluating the from that standard when commenting on a of Plaintiffs’ intended reasonableness may issue. minds come social Reasonable reason, meaning. and because For test, but varying conclusions one “I boo- reading of V the School District’s thing open to debate: a school dis- sexual en- inappropriate double bies!” trict faced the same dilemma interpretation tendre was a reasonable months, weeks, coming years given context, hold middle I would school ability greater guidance regarding no its a likeli- that Plaintiffs cannot demonstrate particular message determine whether their on the merits of hood of success Majori- proscribed than before Accordingly, claim. District Court ty opinion issued. in granting prelimi- abused its discretion nary injunction. Majority lauds the intent of two middle responsible introduc- schoolers (KEEP BREAST)” ing “I ¥ A boobies! school, demonstrates, running a As this case bracelets into their which encour- ever a medi- complicated aged regarding is more now than serious discussion increasing Ap- import. before. Administrators and teachers cal issue social *42 subjects, may or reflect an obliged pellees’ may not to teach core but actions not variety maturity, mired in of but intent of Ap- also find themselves admirable the cases, socio-political pellees many causes school time. is not at issue. during they they implicated, And do in an era no when the First Amendment is so when longer possess plenary speakers control of their the intent of the will be admira- charges they they benign. Majority as did when acted in ble or at con- worst The See, Morse, that, parentis. e.g., long ambiguous cludes as the loco as 413-16, 127 (Thomas, J., may interpreted by concur a reasonable ring). person plausibly political The school as related to a or decisions administrators issue, regarding deportment protected. Despite must make the of it is its social they say, express their what disavowal of intent as a consider- students—what wear, ation, re-injects inadvertently the they do—require Majority or what common by good fray those intent into man- judgment. Many sense and of the students’ the dating analysis political will an of whether a or decisions involve matters about the people disagree. reasonable can In the social issue is addressed cases, it one, my is but sole improper close such as this there is virtue This deferring judgments criticism. to reasonable “tits”) long dis- Majority’s test leaves school as the student is The comment- any essentially political issue, to powerless here, tricts exercise on a or social the First Amend- and extends discretion breast cancer The lack awareness. of cer- protection a breadth knows ment’s to parameter titude or workable unneces- such, similarly- how bounds. As will no sarily handcuffs school districts. apply school amor- situated districts this of the an What circumstance when ana- phous going Majority’s test forward? The tomically correct term is an used aware- First, has two flaws. what test obvious campaign? ness Applying Majority’s ambig- or outside of phrases
words fall test, penises,” vaginas,” “I “I “I ¥ ¥ ¥ designation other than the “seven uous testicles,” or “I appar- ¥ breasts” would Second, dirty how words”? does a school ently phrases slogans that school validity the weight ever assess district districts would be powerless address. political The commentary? of or social any Would invocation of of these slo- ques- guidance of both of these absence gans in a cancer effort awareness fail to leaves their tions school districts scratch garner protection the Majority’s under heads. appear test? It would not. What of the Majority’s Practical with the problems slogans Majority other that the mentions abound. test Where how do school opinion sufficiently its ambigu- are regarding districts line-draw the nouns Majority ous? The blithely states that “it subject to describe the matter used of enjoin does not regu- School District’s particular campaign? Ma- awareness types lation other apparel, of such as jority has that at ends opposite established ‘Save ta-tas’ T-shirt or testicular- “boobies,” spectrum of the on the one cancer-awareness apparel bearing the hand, “tits,” dirty one the “seven 71.) phrase (Maj. ‘feelmyballs.org.’” Op. words,” on the other hand. lies What exactly my may This is concern. What those extremes how a between two do? phrases district These are both principled judg- school district is to make a ambiguous speak political and social going open ques- forward remain ment issues. How is a school now district better doubt, tions. No there are some words able to discern when it exercise its phrases agree that all would should be to impede particular discretion of a use protection afforded no in the middle school it slogan, pro- relates to an awareness context, an despite promoting their use gram, than before the issuance important My social issue. recalcitrance opinion? protection to extend First Amendment practical problem The other which arises slogan simple—why hand is this Majority’s application from of the test is word, “boobies,” Why different? does judging validity and social protection? Is term deserve “boobies” a *43 In comment. the context of these social inherently sophomoric, that is innocuous or campaigns, would the stu- awareness when Majority asserts? As noted in political dents’ involvement not invoke or Majority, descrip- “ta tas” is used as the social constriction comment? The term in tive some breast cancer awareness “plausibly as” adds little campaigns. ambiguity The of “ta tas” instance, our For when question. context discourse. would a beyond this is also What beyond using admittedly a term is question is that seems the school district, ambiguous not be assert that according Majority, to the must able to term, word, lay offending phrase dormant to a use of tas” use of the or student’s “ta (other any synonym commenting political or of “breast” than is that is on a balancing is the issue? or social What engage in can/should/may
a school district of the merit value
to determine The political or social comment?
proposed lewd, vulgar, of a
unabashed invocation is not plainly offensive term
indecent here; is what at issue is at
what issue a test we have established
the notion that parameters. no effectively has entirely evis- prong or social issue authority district’s
cerates school student’s
effectively evaluate whether the This short- protected. indeed in the of the test exem-
coming application its failure
plifies inherent weakness—a face the conundrum school districts
resolve
every day. light Majority’s approach, of the seeking guidance from our districts jurisprudence in this
First Amendment I cannot will find confusion.
context respectfully I approach.
adhere
dissent. America,
UNITED STATES SMITH, Appellant.
Durrell
No. 12-1516. Appeals, Court of
United States
Third Circuit.
Argued: May 2013.
Opinion Aug. Filed: