Tinkering With Tinker: How Much Can Schools Limit Students’ Provocative Speech?


By: Katie Dod
In the Supreme Court’s seminal case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503  (1969), the Supreme Court held that schools can impose restrictions on the speech of students so as to protect their educational mission, however, it was clear that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Since that time, the Supreme Court and lower courts have been grappling with the constitutionally protected boundaries of student speech.  The Supreme Court most recently spoke on the issue in 2007 when it held that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.  Morse v. Frederick, 551 U.S. 393 (2007).  For that reason, the Supreme Court found that the unfurling of a banner reading “BONG HiTS 4 JESUS” during a school function was not protected speech.
Recently, the Third Circuit Court of Appeals applied the standards of Tinker and its progeny (including Morse) to further define the boundaries of constitutionally protected speech of students.  B.H. ex rel. Hawk v. Easton Area Sch. Dist., 11-2067, 2013 WL 3970093 (3d Cir. Aug. 5, 2013).  Two middle school students were suspended from school for wearing bracelets reading “I ♥ boobies! (KEEP A BREAST)” on the grounds that the bracelets were lewd and offensive even though there was no evidence of disruption during school caused by the bracelets.  The Third Circuit, interpreting the Morse opinion in the most narrow way, applied the following standard:  (1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues; (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues; and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.  The Third Circuit found that the “I ♥ boobies! (KEEP A BREAST)” bracelets fit into the third category as they were not categorically lewd and did comment on the important social issue of breast cancer.  In response to the school district’s expressed fear that students would use increasingly vulgar language to speak about political or social issues solely for shock value, the court noted that the first category of the standard protects schools against such a risk because plainly lewd speech can always be prohibited in schools.
If other courts follow the Third Circuit’s interpretation of Morse, it will provide some guidance to administrators about the boundaries of constitutionally protected student speech.  Reasonable minds may still disagree as to what constitutes “plainly lewd” speech or “political and social issues,” so it is likely this area will continue to spawn litigation for years to come.  For now, however, students in Delaware, New Jersey, and Pennsylvania can promote boobie awareness, if not illegal drug use.