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Lance Armstrong what have you started? Two Ohio middle school girls were suspended after wearing "I love boobies" bracelets at school. They filed a lawsuit claiming that their First Amendment rights had been violated.
The students, a 12-year old 7th grader and a 13-year old 8th grader, argue that they wore the bracelets (distributed by the Keep a Breast Foundation) to promote breast cancer awareness and that wearing the bracelets leads to a discussion about breast cancer. The defendant school district justified the suspensions because the girls violated the school's dress code that prohibiting dress in "poor taste." The district also stated "some male middle school students have made embarrassing comments to female students about their breasts." In other words, when girls declare they love their boobies some boys make inappropriate comments about breasts. Go figure.
Is the right to display one's love of boobies in middle school a right protected by the first amendment? In 1969 the United States Supreme Court in Tinker v. Des Moines held that students have a right to non-disruptive personal expression on school premises. The Tinker students protested the 1965 increase in bombing in Vietnam by wearing black armbands.
Fast forward to 2002 when Joseph Frederick unfurled a banner bearing the profound message "Bong Hits for Jesus." Frederick's intent was less noble than ending a war - he simply wanted to be on television when the Olympic Torch Relay passed by his school on its way to the winter games in Salt Lake City, Utah. In Morse v. Frederick the Supreme Court found that bong hits for Jesus was a pro-drug message and held that schools may "restrict student expression that they reasonably regard as promoting illegal drug use."
Where do boobies bounce in the spectrum of armbands to bong hits? The answer depends upon how the issue is framed. What if the bracelet wearer doesn't love all boobies? What if the message is personalized to be "I love my teacher's boobies?" Would that be disruptive and therefore unprotected?
One thing is for certain, if the students had worn bracelets with George Carlin's euphemism for breasts, the word would be one of the seven dirty words (read indecent) that may not be uttered on the public airways. And don't get me started about Janet Jackson's wardrobe malfunction.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. The class covers First Amendment issues as well as copyright, defamation and privacy.
Contact Jon and his team today.