The Virginia Business Litigation Blog
A Pennsylvania school district violated two female middle school students’ First Amendment rights when it punished them for attending school while wearing breast cancer awareness bracelets that bore the slogan “I (heart) Boobies! KEEP A BREAST.” That was the ruling of U.S. District Judge Mary McLaughlin of the Eastern District of Pennsylvania on April 12, 2011, in a high-profile case that pitted free-speech rights and public-health efforts against the need to enforce discipline and promote order in public schools. Judge McLaughlin granted a temporary injunction enjoining the school from enforcing its “no bracelet” policy.
The United States Supreme Court had previously held that students don’t shed their First Amendment protections at the schoolhouse door, but it had also ruled that educators have the right to ban lewdness and to preserve a learning environment. The school district’s lawyers argued that the “boobies” bracelets were lewd and vulgar, and that even if they weren’t, they should be banned because they substantially disrupted the work and discipline of the school. At the injunction hearing, school principals testified that they viewed the term “boobies” as “an impermissible double entendre about sexual attraction to breasts.” The court disagreed, reasoning that the statements needed to be examined in context.
The bracelets are distributed nationwide by the Keep A Breast Foundation, a nonprofit that promotes awareness of breast cancer by women under 30. The girls, Brianna Hawk and Kayla Martinez, testified that they did not intend to express a sexual message by wearing the bracelets 
to school. Both of their mothers gave them permission to wear the bracelets, and they did so on the school’s designated breast cancer awareness day.
“If the phrase ‘I (heart) Boobies!’ appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the school district would have a much stronger argument,” Judge McLaughlin wrote. All the bracelets contained the web address of the foundation, which provides information on breast cancer detection and prevention, the judge noted.
As far as the use of the term “boobies,” Judge McLaughlin concluded that rather than being a “lewd and vulgar” term, it simply matched its intended audience‘s vocabulary. The bracelets were directed to a target audience of teenage girls, and the students testified that “boobies” is the word that they generally use to refer to their breasts. Thus, the phrase is a shorthand way of expressing the importance of breast cancer awareness and of breast health, the judge concluded.