“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things?”
The answer is, says the Third Circuit, of course! The decision of the Third Circuit in the recently decided “I [heart] boobies” case has turned the First Amendment rules in schools on their heads. In logic as upside down as Humpty himself, the Third Circuit finds that lewd isn’t. Hawk v. Easton Area Sch. Dist. (2013)
In the seminal case on the subject of student speech in schools, the Supreme Court famously pronounced that “Students do not shed their free speech/expression rights at the schoolhouse gate.” Tinker v. Des Moines (1969). Thus, students were allowed to wear armbands that protested the war in Vietnam.
That said, the Supreme Court excepted from First Amendment protection a t-shirt proclaiming “Bong hits for Jesus” because it promoted drugs. Morse v. Frederick (2007).
Likewise, the Supreme Court refused to protect a student’s nomination speech full of lewd and vulgar double entendre. Bethel Sch. Dist. v. Fraser (1986).
Now down the rabbit hole falls the Third Circuit. In a spin on Fraser that leaves one spinning, the girls and boys on the bench proclaim that only plainly lewd speech that does not comment on social or political issues may be prohibited; schools cannot prohibit speech that a reasonable observer could interpret as either lewd or not lewd. Schools cannot prohibit speech if an ambiguously lewd speech can also be plausibly interpreted as commenting on social or political issues. Thus, double entendre in the cause of cancer is no crime, and students’ “I [heart] boobies bracelets are protected by the First Amendment.
But, say schools, just who exactly is this “reasonable observer?”
Who is “plausibly” interpreting?
“The question is,” said Humpty Dumpty,” which is to be master, that’s all.”
Hale before the court Puff the Magic Dragon and Alice and her Wonderland, and their possible double entendre and subversive meanings; what is the social or political issue on which Alice’s mushrooms, her caterpillar and his hookah, the disappearing Cheshire cat and his grin are commenting? What about Jackie Paper. Do they survive?
Who decides?
Certainly not principals.
Judges sitting in schools?
The white rabbit? The red queen?
Sounds like its Humpty Dumpty.
CAVEAT EMPTOR. The Freundian Slip is a publication of the KingSpry Education Law Practice Group. It is intended to inform the reader about interesting, important or entertaining developments in our practice area. It is not intended as legal advice and reading The Slip does not make you our client, although we would be happy to have you as our client if the need arises. (c) COPYRIGHT John E. Freund, III, Esquire. 2014.
