The “I ♥ boobies” case

It’s hard to think of a less sexually enticing word for the female breast than boobie. Boobie is the word only little kids use: My son started calling bras “booby-catchers” back when he was in preschool. It’s a word that sounds as benign, bouncy, even snuggly, as a word can sound, and yet it’s been at the heart of one of the most controversial student free speech cases in the country. When and if it gets to the U.S. Supreme Court, even the grim-lipped Justice Anthony Kennedy will probably speak the cheerful little word aloud.

This week, the 3rd Circuit Court of Appeals, based in Philadelphia, ruled in a longstanding case about the appropriateness of silicone bracelets inscribed with “I ♥ boobies!” in schools. The bracelets are sold around the country by the Keep A Breast Foundation to raise awareness for breast cancer research. The foundation says it donates 100 percent of the proceeds from the sales “to the Keep A Breast Foundation, a worldwide non-profit organization."

Often, students wear the bracelets to support family members struggling with the disease. But across the country, schools have banned the bracelets as offensive sexual speech, confiscated them, and suspended students for wearing them. In some schools, officials reportedly snip them right off. The constitutional question is whether the bracelets are lewd sexual speech that proves distracting and disruptive in schools, or a political symbol of support for breast cancer awareness.

Two middle school students in Easton, Penn., wore the bracelets (with their parents’ permission) despite a school ban that called them “distracting and demeaning.” The girls were suspended and banned from participating in extracurriculars. In November 2010, the ACLU helped them file a suit claiming the ban violated their right to free speech. In 2011, a federal judge enjoined the school policy. In a 9–5 en banc (meaning every judge on the court heard the appeal) decision issued this week, the federal appellate court agreed that the school ban violates the First Amendment. The school district has 90 days to decide whether to appeal that ruling to the Supreme Court.

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