I Heart Boobies: Does the Third Circuit? - Civil Rights Law - U.S. Third Circuit
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I Heart Boobies: Does the Third Circuit?

"We're not here to demonize 'boobies.'"

Well, that's a relief.

In April, Easton Area School District Attorney John Freund told the Third Circuit Court of Appeals that two middle school students' "I (Heart) Boobies" bracelets -- promoting breast cancer awareness -- were disruptive, even if they weren't actually lewd. The ACLU claimed that the First Amendment protected the students' decision to wear the bracelets, and that their message should be analyzed in the context of the national breast cancer awareness campaign, reports the Student Press Law Center.

It seems that the Third Circuit hasn’t had its fill of “boobies” arguments yet. Thursday, the appellate court ordered en banc review of the case. Sua sponte, no less.

“You never expect an en banc hearing,” ACLU Attorney Mary Catherine Roper told The Morning Call.“What it means is, there is disagreement among the judges.”

The appellate court told the attorneys in April that the case would turn on whether the bracelets were “lewd or vulgar” double entendres under Bethel School District v. Fraser. The real question, however, is whether the speaker/wearer’s intent, or an observer’s “reasonable perception” of the bracelet, should determine if the bracelet is lewd or vulgar.

Freund — who has nothing against ‘boobies’ per se — claimed that the speaker’s intent was irrelevant in light of Fraser. Roper countered, “We cannot define the First Amendment by the point at which a 13-year-old boy giggles.”

(Advantage: Roper.)

The “I (Heart) Boobies” bracelets have courted controversy in Wisconsin and Indiana as well, so a Third Circuit en banc decision could set the tone for the inevitable Seventh Circuit challenge.

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