## Facts

- Middle-school students wore rubber bracelets stating “I ♥ boobies! (KEEP A BREAST)” as part of a breast-cancer awareness campaign aimed at youth.
- School staff reported discomfort with the term “boobies,” though the bracelets had not produced material disruption.
- The school administration announced and enforced a ban on the bracelets, including on a Breast Cancer Awareness Day observance.
- Two students refused to remove the bracelets and were disciplined with in-school suspension and barred from a school dance.
- The school district later issued a district-wide prohibition on the bracelets.
- The students sued under 42 U.S.C. § 1983, alleging the ban violated the First Amendment, and sought a preliminary injunction.

## Issues

1. Whether the slogan was categorically restrictable as “vulgar, lewd, profane, or plainly offensive” student speech under *Bethel Sch. Dist. No. 403 v. Fraser*.
2. If not categorically restrictable under *Fraser*, whether the ban was permissible under *Tinker v. Des Moines* based on a reasonable forecast of substantial disruption or invasion of others’ rights.
3. Whether the students satisfied the requirements for a preliminary injunction against enforcement of the ban.

## Decision

- The en banc Third Circuit affirmed the preliminary injunction against the bracelet ban.
- The court concluded the bracelets were not “plainly lewd” and plausibly expressed a social message about breast-cancer awareness.
- Because the speech was not within *Fraser*’s categorical exception, it was governed by *Tinker*.
- The district failed to show actual or reasonably forecast substantial disruption, or that the bracelets invaded other students’ rights.
- The students showed a likelihood of success on the merits and irreparable harm from loss of First Amendment rights; the balance of equities and public interest favored the injunction.

## Legal Principles

- Student speech falls into distinct categories; absent a recognized exception, *Tinker* supplies the baseline rule limiting regulation to substantial disruption or rights-invasion.
- Schools may categorically restrict student speech that is “plainly lewd” in the sense associated with obscenity-like offense, even if it touches on social or political topics.
- Speech that is not plainly lewd but could be interpreted as lewd may be categorically restricted only when it cannot plausibly be understood as commenting on a political or social issue.
- Ambiguously lewd speech that plausibly comments on a political or social issue is not categorically restrictable under *Fraser* and must be assessed under *Tinker*.
- Discomfort with wording or speculative concerns about immature reactions, without evidence of material interference or rights-invasion, does not satisfy *Tinker*.

## Conclusion

The Third Circuit held that the “I ♥ boobies! (KEEP A BREAST)” bracelets were, at most, ambiguously lewd but plausibly conveyed a breast-cancer awareness message, placing them outside *Fraser* and within *Tinker*’s protection; because the school district did not demonstrate substantial disruption or rights-invasion, the preliminary injunction barring enforcement of the ban was affirmed.


B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) (en banc)