B.H. Ex Rel. Hawk v. Easton Area School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-2067

_______________

B.H., A MINOR, BY AND THROUGH HER MOTHER;

JENNIFER HAWK; K.M., A MINOR BY AND

THROUGH HER MOTHER;

AMY MCDONALD-MARTINEZ

v.

EASTON AREA SCHOOL DISTRICT,

Appellant

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 5-10-cv-06283)

District Judge: Honorable Mary A. McLaughlin

_______________

Argued on April 10, 2012

Rehearing En Banc Ordered on August 16, 2012

Argued En Banc February 20, 2013

_______________

Before: McKEE, Chief Judge, SLOVITER, SCIRICA,

RENDELL, AMBRO, FUENTES, SMITH, FISHER,

CHAGARES, JORDAN, HARDIMAN,

GREENAWAY, JR., VANASKIE, and GREENBERG,

Circuit Judges

(Opinion filed: August 5, 2013)

Keely J. Collins

John E. Freund, III [ARGUED]

Jeffrey T. Tucker

King, Spry, Herman, Freund & Faul

One West Broad Street, Suite 700

Bethlehem, PA 18018

Counsel for Appellant

Seth F. Kreimer

University of Pennsylvania School of Law

3400 Chestnut Street

Philadelphia, PA 19104

Mary Catherine Roper [ARGUED]

American Civil Liberties Union of Pennsylvania

P.O. Box 40008

Philadelphia, PA 19106

Molly M. Tack-Hooper

Berger & Montague

2

1622 Locust Street

Philadelphia, PA 19103

Witold J. Walczak

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

Counsel for Appellees

Sean A. Fields

Pennsylvania School Boards Association

400 Bent Creek Boulevard

P.O. Box 2042

Mechanicsburg, PA 17055

Counsel for Amicus Appellant

Wilson M. Brown, III

Kathryn E. Deal

Drinker, Biddle & Reath

18th & Cherry Streets

One Logan Square, Suite 2000

Philadelphia, PA 19103

Rory Wicks

Gary L. Sirota

1140 South Coast Highway 101

Encinitas, CA 92024

3

Amy R. Arroyo

2251 Las Palmas Drive

Carlsbad, CA 92011

Wayne Pollock

Dechert LLP

2929 Arch Street, 18th Floor Cira Centre

Philadelphia, PA 19104

Frank D. LoMonte

Laura Napoli

Student Press Law Center

1101 Wilson Boulevard, Suite 1100

Arlington, VA 22209

Terry L. Fromson

Carol E. Tracey

Women’s Law Project

125 South 9th Street, Suite 300

Philadelphia, PA 19107

David L. Cohen

3320 Market Street, Suite 232

Philadelphia, PA 19104

Counsel for Amici Appellees

4

_______________

OPINION

_______________

SMITH, Circuit Judge, with whom McKEE, Chief

Judge, SLOVITER, SCIRICA, RENDELL, AMBRO,

FUENTES, FISHER, and VANASKIE, Circuit Judges

join.

Once again, we are asked to find the balance

between a student’s right to free speech and a school’s

need to control its educational environment. In this case,

two middle-school students purchased bracelets bearing

the slogan “I ♥ boobies! (KEEP A BREAST)” as part of

a nationally recognized breast-cancer-awareness

campaign. The Easton Area School District banned the

bracelets, relying on its authority under Bethel School

District No. 403 v. Fraser, 478 U.S. 675 (1986), to

restrict vulgar, lewd, profane, or plainly offensive speech,

and its authority under Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969), to

restrict speech that is reasonably expected to substantially

disrupt the school. The District Court held that the ban

violated the students’ rights to free speech and issued a

preliminary injunction against the ban.

We agree with the District Court that neither

5

Fraser nor Tinker can sustain the bracelet ban. The

scope of a school’s authority to restrict lewd, vulgar,

profane, or plainly offensive speech under Fraser is a

novel question left open by the Supreme Court, and one

which we must now resolve. We hold that Fraser, as

modified by the Supreme Court’s later reasoning in

Morse v. Frederick, 551 U.S. 393 (2007), sets up the

following framework: (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. Because the bracelets here are

not plainly lewd and because they comment on a social

issue, they may not be categorically banned under

Fraser. The School District has also failed to show that

the bracelets threatened to substantially disrupt the school

under Tinker. We will therefore affirm the District

Court.

6

I.

A. Factual background

As a “leading youth focused global breast cancer

organization,” the Keep A Breast Foundation tries to

educate thirteen- to thirty-year-old women about breast

cancer. Br. of Amicus Curiae KABF at 13. To that end,

it often partners with other merchants to co-brand

products that raise awareness. And because it believes

that young women’s “negative body image[s]” seriously

inhibit their awareness of breast cancer, the Foundation’s

products often “seek[] to reduce the stigma by speaking

to young people in a voice they can relate to.” Id. at 14–

15. If young women see such awareness projects and

products as cool and trendy, the thinking goes, then they

will be more willing to talk about breast cancer openly.

To “start a conversation about that taboo in a light-

hearted way” and to break down inhibitions keeping

young women from performing self-examinations, the

Foundation began its “I ♥ Boobies!” initiative. Id. at 20–

21. Part of the campaign included selling silicone

bracelets of assorted colors emblazoned with “I ♥

Boobies! (KEEP A BREAST)” and “check y♥urself!

(KEEP A BREAST).” Id. at 21–22. The Foundation’s

website address (www.keep-a-breast.org) and motto

(“art. education. awareness. action.”) appear on the inside

of the bracelet. Id.

7

As intended, the “I ♥ Boobies” initiative was a hit

with young women, quickly becoming one of the

Foundation’s “most successful and high profile

educational campaigns.” Id. at 20–21. Two of the young

women drawn to the bracelets were middle-school

students B.H. and K.M. They purchased the bracelets

with their mothers before the 2010–2011 school year—

B.H. because she saw “a lot of [her] friends wearing” the

bracelets and wanted to learn about them, and K.M.

because of the bracelet’s popularity and awareness

message. App. 72, 92, 106, 442.

But the bracelets were more than just a new

fashion trend. K.M.’s purchase prompted her to become

educated about breast cancer in young women. The girls

wore their bracelets both to commemorate friends and

relatives who had suffered from breast cancer and to

promote awareness among their friends. Indeed, their

bracelets started conversations about breast cancer and

did so far more effectively than the more-traditional pink

ribbon. App. 73–74. That made sense to B.H., who

observed that “no one really notices” the pink ribbon,

whereas the “bracelets are new and . . . more appealing to

teenagers.” App. 74.

B.H., K.M., and three other students wore the “I ♥

boobies! (KEEP A BREAST)” bracelets at Easton Area

Middle School during the 2010–2011 school year. A few

teachers, after observing the students wear the bracelets

8

every day for several weeks, considered whether they

should take action. The teachers’ responses varied: One

found the bracelets offensive because they trivialized

breast cancer. Others feared that the bracelets might lead

to offensive comments or invite inappropriate touching.

But school administrators also believed that middle-

school boys did not need the bracelets as an excuse to

make sexual statements or to engage in inappropriate

touching. See, e.g., Viglianti Test., App. 196, 198

(testifying that such incidents “happened before the

bracelets” and were “going to happen after the bracelets”

because “sexual curiosity between boys and girls in the

middle school is . . . a natural and continuing thing”).

In mid- to late September, four or five teachers

asked the eighth-grade assistant principal, Amy

Braxmeier, whether they should require students to

remove the bracelets. The seventh-grade assistant

principal, Anthony Viglianti, told the teachers that they

should ask students to remove “wristbands that have the

word ‘boobie’ written on them,” App. 343, even though

there were no reports that the bracelets had caused any

in-school disruptions or inappropriate comments.1

1

In mid-October before the ban was publicly announced,

school administrators received some unrelated reports of

inappropriate touching, but neither the word “boobies”

nor the bracelets were considered a cause of these

incidents.

9

With Breast Cancer Awareness Month

approaching in October, school administrators

anticipated that the “I ♥ boobies! (KEEP A BREAST)”

bracelets might reappear.2 The school was scheduled to

observe Breast Cancer Awareness Month on October 28,

so the day before, administrators publicly announced, for

the first time, the ban on bracelets containing the word

“boobies.” Using the word “boobies” in his

announcement, Viglianti notified students of the ban over

the public-address system, and a student did the same on

the school’s television station. The Middle School still

encouraged students to wear the traditional pink, and it

provided teachers who donated to Susan G. Komen for

the Cure with either a pin bearing the slogan

“Passionately Pink for the Cure” or a T-shirt reading

“Real Rovers Wear Pink.”

Later that day, a school security guard noticed

B.H. wearing an “I ♥ boobies! (KEEP A BREAST)”

bracelet and ordered her to remove it. B.H. refused.

After meeting with Braxmeier, B.H. relented, removed

her bracelet, and returned to lunch. No disruption

occurred at any time that day.

The following day, B.H. and K.M. each wore their

“I ♥ boobies! (KEEP A BREAST)” bracelets to observe

2

The Middle School permits students to wear the

Foundation’s “check y♥urself (KEEP A BREAST)”

bracelets.

10

the Middle School’s Breast Cancer Awareness Day. The

day was uneventful—until lunchtime. Once in the

cafeteria, both girls were instructed by a school security

guard to remove their bracelets. Both girls refused.

Hearing this encounter, another girl, R.T., stood up and

similarly refused to take off her bracelet. Confronted by

this act of solidarity, the security guard permitted the

girls to finish eating their lunches before escorting them

to Braxmeier’s office. Again, the girls’ actions caused no

disruption in the cafeteria, though R.T. told Braxmeier

that one boy had immaturely commented either that he

also “love[d] boobies” or that he “love[d] her boobies.”

Braxmeier spoke to all three girls, and R.T. agreed

to remove her bracelet. B.H. and K.M. stood firm,

however, citing their rights to freedom of speech. The

Middle School administrators were having none of it.

They punished B.H. and K.M. by giving each of them

one and a half days of in-school suspension and by

forbidding them from attending the Winter Ball. The

administrators notified the girls’ families, explaining only

that B.H. and K.M. were being disciplined for

“disrespect,” “defiance,” and “disruption.”

News of the bracelets quickly reached the rest of

the Easton Area School District, which instituted a

district-wide ban on the “I ♥ boobies! (KEEP A

BREAST)” bracelets, effective on November 9, 2010.

The only bracelet-related incident reported by school

11

administrators occurred weeks after the district-wide ban:

Two girls were talking about their bracelets at lunch

when a boy who overheard them interrupted and said

something like “I want boobies.” He also made an

inappropriate gesture with two red spherical candies.

The boy admitted his “rude” comment and was

suspended for one day.3

This was not the first time the Middle School had

banned clothing that it found distasteful. Indeed, the

School District’s dress-code policy prohibits “clothing

imprinted with nudity, vulgarity, obscenity, profanity,

and double entendre pictures or slogans.”4 Under the

policy, seventh-grade students at the Middle School have

been asked to remove clothing promoting Hooters and

Big Pecker’s Bar & Grill, as well as clothing bearing the

phrase “Save the ta-tas” (another breast-cancer-

awareness slogan). Typically, students are disciplined

only if they actually refuse to remove the offending

apparel when asked to do so.

B. Procedural history

3

After the district-wide ban was in place, there were

several incidents of middle-school boys inappropriately

touching girls, but they were unrelated to the “I ♥

boobies! (KEEP A BREAST)” bracelets.

4

B.H. and K.M. do not assert a facial challenge to the

constitutionality of the dress-code policy.

12

Through their mothers, B.H. and K.M. sued the

School District under 42 U.S.C. § 1983.5 Compl., ECF

No. 1 ¶ 3, B.H. v. Easton Area Sch. Dist., No. 5:10-CV-

06283-MAM (E.D. Pa. Nov. 15, 2010). They sought a

temporary restraining order allowing them to attend the

Winter Ball and a preliminary injunction against the

bracelet ban. B.H. v. Easton Area Sch. Dist., 827 F.

Supp. 2d 392, 394 (E.D. Pa. 2011). At the District

Court’s urging, the School District reversed course and

permitted B.H. and K.M. to attend the Winter Ball while

retaining the option to impose a comparable punishment

if the bracelet ban was upheld. Id. The District Court

accordingly denied the motion for a temporary

restraining order. Id.

The District Court conducted an evidentiary

hearing on the request for a preliminary injunction. It

soon became clear that the School District’s rationale for

disciplining B.H. and K.M. had shifted. Although B.H.’s

and K.M.’s disciplinary letters indicated only that they

were being disciplined for “disrespect,” “defiance,” and

“disruption,” the School District ultimately based the ban

5

The District Court had both federal-question

jurisdiction under 28 U.S.C. § 1331 and § 1983

jurisdiction under 28 U.S.C. § 1343(a)(3). See Max v.

Republican Comm. of Lancaster Cnty., 587 F.3d 198, 199

n.1 (3d Cir. 2009).

13

on its dress-code policy6 together with the bracelets’

alleged sexual innuendo. According to the School

District’s witnesses, the Middle School assistant

principals had conferred and concluded that the bracelets

“conveyed a sexual double entendre” that could be

harmful and confusing to students of different physical

and sexual developmental levels. Sch. Dist.’s Br. at 9.

And the principals believed that middle-school students,

who often have immature views of sex, were particularly

likely to interpret the bracelets that way. For its part, the

Foundation explained that no one there “ever suggested

that the phrase ‘I (Heart) Boobies!’ is meant to be sexy.”

App. 150. To that end, the Foundation had denied

requests from truck stops, convenience stores, vending

machine companies, and pornographers to sell the

6

Even the Middle School administrators seemed unsure

which words would be prohibited by the dress code.

When deposed, Viglianti and principal Angela DiVietro

testified that the word “breast” (as in apparel stating

“keep-a-breast.org” or “breast cancer awareness”) would

be inappropriate because the word “breast” “can be

construed as [having] a sexual connotation.” App. 490,

497. At the District Court’s evidentiary hearing, they

reversed course. Viglianti stated that “keep-a-breast.org”

would be appropriate “[i]n the context of Breast Cancer

Awareness Month,” and DiVeitro no longer believed the

phrase “breast cancer awareness” was vulgar to middle-

school students.

14

bracelets.

After the evidentiary hearing, the District Court

preliminarily enjoined the School District’s bracelet ban.

According to the District Court, B.H. and K.M. were

likely to succeed on the merits because the bracelets did

not contain lewd speech under Fraser and did not

threaten to substantially disrupt the school environment

under Tinker. The District Court could find no other

basis for regulating the student speech at issue. The

School District appealed, and the District Court denied its

request to stay the injunction pending this appeal.

II.

Although the District Court’s preliminary

injunction is not a final order, we have jurisdiction under

28 U.S.C. § 1292(a)(1), which grants appellate

jurisdiction over “[i]nterlocutory orders of the district

courts . . . granting, continuing, modifying, refusing, or

dissolving injunctions.” See Sypniewski v. Warren Hills

Reg’l Bd. of Educ., 307 F.3d 243, 252 n.10 (3d Cir.

2002). We review the District Court’s factual findings

for clear error, its legal conclusions de novo, and its

ultimate decision to grant the preliminary injunction for

abuse of discretion. Id. at 252. Four factors determine

whether a preliminary injunction is appropriate:

(1) whether the movant has a reasonable

probability of success on the merits; (2)

15

whether the movant will be irreparably

harmed by denying the injunction; (3)

whether there will be greater harm to the

nonmoving party if the injunction is granted;

and (4) whether granting the injunction is in

the public interest.

Id. (quoting Highmark, Inc. v. UPMC Health Plan, Inc.,

276 F.3d 160, 170 (3d Cir. 2001)). The District Court

concluded that all four factors weighed in favor of B.H.

and K.M. In school-speech cases, though, the first

factor—the likelihood of success on the merits—tends to

determine which way the other factors fall. Id. at 258.

Because the same is true here, we focus first on B.H. and

K.M.’s burden to show a likelihood of success on the

merits. Id.

III.

The School District defends the bracelet ban as an

exercise of its authority to restrict lewd, vulgar, profane,

or plainly offensive student speech under Fraser. As to

the novel question of Fraser’s scope, jurists seem to

agree on one thing: “[t]he mode of analysis employed in

Fraser is not entirely clear.” Morse, 551 U.S. at 404.7

7

The rest of the Supreme Court’s student-speech

jurisprudence might fairly be described as opaque. See

Morse, 551 U.S. at 418 (Thomas, J., concurring) (“I am

afraid that our jurisprudence now says that students have

16

On this point, we think the Supreme Court’s student-

speech cases are more consistent than they may first

appear. As we explain, Fraser involved only plainly

lewd speech. We hold that, under Fraser, a school may

also categorically restrict speech that—although not

plainly lewd, vulgar, or profane—could be interpreted by

a reasonable observer as lewd, vulgar, or profane so long

as it could not also plausibly be interpreted as

commenting on a political or social issue. Because the “I

♥ boobies! (KEEP A BREAST)” bracelets are not plainly

lewd and express support for a national breast-cancer-

awareness campaign—unquestionably an important

social issue—they may not be categorically restricted

a right to speak in schools except when they do

not . . . .”); id. at 430 (Breyer, J., concurring in part and

dissenting in part) (“[C]ourts have described the tests

these cases suggest as complex and often difficult to

apply.”); see, e.g., Doninger v. Niehoff, 642 F.3d 334,

353 (2d Cir. 2011) (“The law governing restrictions on

student speech can be difficult and confusing, even for

lawyers, law professors, and judges. The relevant

Supreme Court cases can be hard to reconcile, and courts

often struggle with which standard applies in any

particular case.”); Guiles ex rel. Guiles v. Marineau, 461

F.3d 320, 326, 331 (2d Cir. 2006) (acknowledging “some

lack of clarity in the Supreme Court’s student-speech

cases” and stating that the “exact contours of what is

plainly offensive [under Fraser] is not so clear”).

17

under Fraser.

A. The Supreme Court’s decision in Fraser

“[A]s a general matter, the First Amendment

means that government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564,

573 (2002). Of course, there are exceptions. When

acting as sovereign, the government is empowered to

impose time, place, and manner restrictions on speech,

see Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989), make reasonable, content-based decisions about

what speech is allowed on government property that is

not fully open to the public, see Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 674–75 (1998), decide

what viewpoints to espouse in its own speech or speech

that might be attributed to it, see Johanns v. Livestock

Mktg. Ass’n, 544 U.S. 550, 560 (2005), and categorically

restrict unprotected speech, such as obscenity, see Miller

v. California, 413 U.S. 15, 23 (1973).8

8

Other examples of categorically unprotected speech

include child pornography, see New York v. Ferber, 458

U.S. 747, 764–65 (1982), advocacy that imminently

incites lawless action, see Brandenburg v. Ohio, 395 U.S.

444, 447–48 (1969) (per curiam), fighting words, see

Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72

(1942), true threats, see Watts v. United States, 394 U.S.

18

Sometimes, however, the government acts in

capacities that go beyond being sovereign. In those

capacities, it not only retains its sovereign authority over

speech but also gains additional flexibility to regulate

speech. See In re Kendall, 712 F.3d 814, 825 (3d Cir.

2013) (collecting examples). One of those other

capacities is K-12 educator. Although “students do not

‘shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,’” the First

Amendment has to be “applied in light of the special

characteristics of the school environment” and thus

students’ rights to freedom of speech “are not

automatically coextensive with the rights of adults in

other settings.” Morse, 551 U.S. at 396–97 (internal

quotation marks and citations omitted).

The Supreme Court first expressed this principle

nearly a half century ago. In 1965, the United States

deployed over 200,000 troops to Vietnam as part of

Operation Rolling Thunder—and thus began the Vietnam

War. That war “divided this country as few other issues

[e]ver have.” Tinker, 393 U.S. at 524 (Black, J.,

705, 708 (1969) (per curiam), commercial speech that is

false, misleading, or proposes illegal transactions, see

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 562, 566–67 (1980), and some

false statements of fact, see United States v. Alvarez, 132

S. Ct. 2537, 2546–47 (2012).

19

dissenting). Public opposition to the war made its way

into schools, and in one high-profile case, a group of

high-school and middle-school students wore black

armbands to express their opposition. Id. at 504

(majority opinion). School officials adopted a policy

prohibiting the armbands and suspending any student

who refused to remove it when asked. Id. Some students

refused and were suspended. Id. The Supreme Court

upheld their right to wear the armbands. Id. at 514.

Tinker held that school officials may not restrict student

speech without a reasonable forecast that the speech

would substantially disrupt the school environment or

invade the rights of others. Id. at 513. As nothing more

than the “silent, passive expression of opinion,

unaccompanied by any disorder or disturbance on [the

students’] part,” the students’ armbands were protected

by the First Amendment. Id. at 508.

Under Tinker’s “general rule,” the government

may restrict school speech that threatens a specific and

substantial disruption to the school environment or that

“inva[des] . . . the rights of others.”9 Saxe v. State

9

We have not yet decided whether Tinker is limited to

on-campus speech. See J.S. v. Blue Mountain Sch. Dist.,

650 F.3d 915, 926 & n.3 (3d Cir. 2011) (en banc)

(declining to reach this issue); see also id. at 936 (Smith,

J., concurring) (“I write separately to address a question

20

College Area Sch. Dist., 240 F.3d 200, 211, 214 (3d Cir.

2001) (citing Tinker, 393 U.S. at 504). Since Tinker, the

Supreme Court has identified three “narrow”

circumstances in which the government may restrict

student speech even when there is no risk of substantial

disruption or invasion of others’ rights. Id. at 212. First,

the government may categorically restrict vulgar, lewd,

profane, or plainly offensive speech in schools, even if it

would not be obscene outside of school. Fraser, 478

U.S. at 683, 685. Second, the government may likewise

restrict speech that “a reasonable observer would

interpret as advocating illegal drug use” and that cannot

“plausibly be interpreted as commenting on any political

or social issue.” Morse, 551 U.S. at 422 (Alito, J.,

concurring); see also id. at 403 (majority opinion)

(“[T]his is plainly not a case about political debate over

the criminalization of drug use or possession.”).10 And

third, the government may impose restrictions on school-

sponsored speech that are “reasonably related to

legitimate pedagogical concerns”—a power usually

lumped together with the other school-specific speech

doctrines but that, strictly speaking, simply reflects the

government’s more general power as sovereign over

that the majority opinion expressly leaves open: whether

Tinker applies to off-campus speech in the first place.”).

10

As we explain in Part III.B(2), the limitations that

Justice Alito’s concurrence places on the majority’s

opinion in Morse are controlling.

21

government-sponsored speech.11 Hazelwood Sch. Dist. v.

11

Compare Pleasant Grove City, Utah v. Summum, 555

U.S. 460, 468 (2009) (discussing the government-speech

doctrine and explaining that “[a] government entity may

exercise this same freedom to express its views when it

receives assistance from private sources for the purpose

of delivering a government-controlled message” (citing

Johanns, 544 U.S. at 562)), with Kuhlmeier, 484 U.S. at

271, 273 (reaffirming the government’s same authority to

control speech that might be “reasonably perceive[ed] to

bear the imprimatur of the school” in its role as K-12

educator); see also Eugene Volokh, The First

Amendment and the Government as K-12 Educator, The

Volokh Conspiracy (Oct. 31, 2011, 6:26 PM),

http://www.volokh.com/2011/10/31/the-first-

amendment-and-the-government-as-k-12-educator/

(“[Kuhlmeier] generally reflects broad government-as-

speaker law, and not special rules related to the

government as K-12 educator.”); Michael J. O’Connor,

Comment, School Speech in the Internet Age: Do

Students Shed Their Rights When They Pick Up a

Mouse?, 11 U. Pa. J. Const. L. 459, 469 (2009)

(“Hazelwood . . . simply illustrates the idea that the

school speech arena is not isolated from developments in

wider First Amendment jurisprudence. . . . Hazelwood

recognizes that schools are government actors and

therefore are entitled to control speech that could be

reasonably viewed as originating with them.”); Gia B.

22

Kuhlmeier, 484 U.S. 260, 273 (1988).

The first exception is at issue here. We must

determine the scope of the government’s authority to

categorically restrict vulgar, lewd, indecent, or plainly

offensive speech under Fraser. Fraser involved a high-

school assembly during which a student “nominated a

peer for class office through an ‘an elaborate, graphic,

and explicit sexual metaphor.’” Saxe, 240 F.3d at 212

(quoting Fraser, 478 U.S. at 677). Fraser’s speech

“glorif[ied] male sexuality”:

I know a man who is firm—he’s firm in his

pants, he’s firm in his shirt, his character is

firm—but most . . . of all, his belief in you,

the students of Bethel, is firm. . . . Jeff

Kuhlman [the candidate] is a man who takes

his point and pounds it in. If necessary, he’ll

take an issue and nail it to the wall. He

doesn’t attack things in spurts, he drives hard,

pushing and pushing until finally—he

succeeds. . . . Jeff is a man who will go to the

very end—even the climax, for each and

every one of you. . . . So vote for Jeff for

A.S.B. vice-president—he’ll never come

between you and the best our high school can

Lee, First Amendment Enforcement in Government

Institutions and Programs, 56 UCLA L. Rev. 1691,

1711–12 (2009) (similar).

23

be.

Fraser, 478 U.S. at 687 (Brennan, J., concurring). In

response, “[s]ome students hooted and yelled; some by

gestures simulated the sexual activities pointedly alluded

to in [Fraser’s] speech.” Id. at 678 (majority opinion).

Still “[o]ther students appeared to be bewildered and

embarrassed by the speech.” Id. The school suspended

Fraser and took him out of the running for graduation

speaker. Id.

The Supreme Court upheld Fraser’s suspension.

Id. at 683. Rather than requiring a reasonable forecast of

substantial disruption under Tinker, the Court held that

lewd, vulgar, indecent, and plainly offensive student

speech is categorically unprotected in school, even if it

falls short of obscenity and would have been protected

outside school. Saxe, 240 F.3d at 213 (discussing

Fraser); Morse, 551 U.S. at 405 (“Had Fraser delivered

the same speech in a public forum outside the school

context, it would have been protected.”); Fraser, 478

U.S. at 688 (Blackmun, J., concurring) (“If [Fraser] had

given the same speech outside of the school environment,

he could not have been penalized simply because

government officials considered his language to be

inappropriate.”). For this proposition, the Court relied on

precedent holding that the government can restrict

expression that would be obscene from a minor’s

perspective—even though it would not be obscene in an

24

adult’s view—where minors are either a captive audience

or the intended recipients of the speech. See Fraser, 478

U.S. at 684–85 (relying on Ginsberg v. New York, 390

U.S. 629, 635–37 & nn.4–5 (1968) (upholding criminal

punishment for selling to minors any picture depicting

nudity); Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853, 870 (1982) (plurality

opinion) (acknowledging that the Free Speech Clause

would allow a local board of education to remove

“pervasively vulgar” books from school libraries); and

FCC v. Pacifica Found., 438 U.S. 726, 749–50 (1978)

(rejecting a Free Speech Clause challenge to the FCC’s

broad leeway to regulate indecent-but-not-obscene

material on broadcast television during hours when

children were likely to watch)).

Fraser did no more than extend these obscenity-to-

minors12 cases to another place where minors are a

12

See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729,

2735 (2011) (describing Ginsberg as regulating

“obscenity for minors”); Reno v. ACLU, 521 U.S. 844,

869 (1997) (reaffirming the government’s power under

Pacifica and Ginsberg to “‘protect[] the physical and

psychological well-being of minors’ which extended to

shield them from indecent messages that are not obscene

by adult standards” (quoting Sable Comm’cns of Cal.,

Inc. v. FCC, 492 U.S. 115, 126 (1989))); Pacifica

Found., 438 U.S. at 767 (Brennan, J., dissenting)

25

captive audience—schools. Indeed, as the Court

explained, schools are tasked with more than just

“educating our youth” about “books, the curriculum, and

the civics class.” Id. at 681. Society also expects schools

to “teach[] students the boundaries of socially appropriate

behavior,” including the “fundamental values of ‘habits

and manners of civility’ essential to a democratic

society.” Id. at 681, 683 (citation omitted).

Consequently, Fraser’s “sexually explicit monologue”

was not protected. Id. at 685.

It is important to recognize what was not at stake

in Fraser. Fraser addressed only a school’s power over

speech that was plainly lewd—not speech that a

reasonable observer could interpret as either lewd or non-

lewd. See, e.g., Doninger v. Niehoff, 527 F.3d 41, 49 (2d

Cir. 2008) (“[Fraser’s] reference to ‘plainly offensive’

speech must be understood in light of the vulgar, lewd,

and sexually explicit language that was at issue in [that]

case.”); Chandler v. McMinnville Sch. Dist., 978 F.2d

(agreeing with the majority that the government could

regulate “variable obscenity” or “obscenity to minors” on

broadcast television, but disagreeing with the majority

that the Carlin monologue met that standard); Erznoznik

v. City of Jacksonville, 422 U.S. 205, 213 n.10 (1975)

(describing Ginsberg as involving “obscenity as to

minors”); Ginsberg, 390 U.S. at 635 n.4 (using the label

“variable obscenity”).

26

524, 530 (9th Cir. 1992) (interpreting Fraser as limited to

“per se vulgar, lewd, obscene, or plainly offensive”

school speech). After all, the Court believed Fraser’s

speech to be “plainly offensive to both teachers and

students—indeed to any mature person.”13 Fraser, 478

U.S. at 683.

And because it was plainly lewd, the Court did not

believe that Fraser’s speech could plausibly be

interpreted as political or social commentary. In

hindsight, it might be tempting to believe that Fraser’s

speech was political because it was made in the context

of a student election. Cf. Citizens United v. FEC, 558

U.S. 310, 130 S. Ct. 876, 898 (2010) (describing the

importance of political speech as the “means to hold

13

Of course, Fraser’s speech might “seem[] distinctly

lacking in shock value” today, especially “from the

perspective enabled by 25 years of erosion of refinement

in the use of language.” Zamecnik v. Indian Prairie Sch.

Dist. No. 204, 636 F.3d 874, 877 (7th Cir. 2011); see also

Fraser, 478 U.S. at 691 (Stevens, J., dissenting) (noting

that Clark Gable’s famous use of the word “damn” in

“Frankly, my dear, I don’t give a damn” “shocked the

Nation” when Justice Stevens was a high school student

but had become “less offensive” by the time of Fraser).

Any such change in perspective, however, is irrelevant to

our examination of the Court’s interpretation of Fraser’s

speech and its reasoning.

27

officials accountable to the people”). But that kind of

revisionist history is belied by both the logic and

language of Fraser. “Fraser permits a school to prohibit

words that ‘offend for the same reasons that obscenity

offends.’” Saxe, 240 F.3d at 213 (quoting Fraser, 478

U.S. at 685). Obscenity, in turn, offends because it is “no

essential part of any exposition of ideas, and [is] of such

slight social value as a step to truth that any benefit that

may be derived from [it] is clearly outweighed by the

social interest in order and morality.” Fraser, 478 U.S.

at 683 (quoting Pacifica Found., 438 U.S. at 746

(plurality opinion)). In other words, obscenity and

obscenity to minors, like “other historically unprotected

categories of speech,” have little or no political or social

value. United States v. Stevens, 559 U.S. 460, 130 S. Ct.

1577, 1585 (2010). By concluding that Fraser’s speech

met the obscenity-to-minors standard, the Court

necessarily implied that his speech could not be

interpreted as having “serious” political value. Miller,

413 U.S. at 24.

In fact, the majority in Fraser made this explicit.

“[T]he Fraser [C]ourt distinguished its holding from

Tinker in part on the absence of any political message in

Fraser’s speech.” Guiles ex rel. Guiles v. Marineau, 461

F.3d 320, 326, 328 (2d Cir. 2006). In the Court’s own

words, there was a “marked distinction between the

political ‘message’ of the armbands in Tinker and the

sexual content of [Fraser’s] speech.” Fraser, 478 U.S. at

28

680 (emphasis added); see also Defoe ex rel. Defoe v.

Spiva, 625 F.3d 324, 332 (6th Cir. 2010) (“Tinker

governs this case because by wearing clothing bearing

images of the Confederate flag, Tom Defoe engaged in

‘pure speech,’ which is protected by the First

Amendment, and thus Fraser would not apply.”).

Several courts of appeals have similarly interpreted

Fraser. Guiles, 461 F.3d at 326, 328; Newsom ex rel.

Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 256

(4th Cir. 2003) (explaining that Fraser “distinguish[ed]

Tinker on the basis that the lewd, vulgar, and plainly

offensive speech was ‘unrelated to any political

viewpoint’ (quoting Fraser, 478 U.S. at 685)); Chandler,

978 F.2d at 532 n.2 (Goodwin, J., concurring)

(concluding that Fraser does not apply because “this case

clearly involves political speech”). And the Supreme

Court later characterized Fraser’s reasoning the same

way. Morse, 551 U.S. at 404 (noting that Fraser was

“plainly attuned” to the sexual, non-political “content of

Fraser’s speech”). In fact, Morse refused to “stretch[]

Fraser” so far as to “encompass any speech that could fit

under some definition of ‘offensive’” out of a fear that

“much political and religious speech might be perceived

as offensive to some.” Id. at 409. Fraser therefore

involved plainly lewd speech that did not comment on

political or social issues.

29

B. How far does a school’s authority under Fraser

extend?

The School District asks us to extend Fraser in at

least two ways: to reach speech that is ambiguously lewd,

vulgar, or profane and to reach speech on political or

social issues.14 The first step is justified, but the second

14

Fraser differs from this case in a third way: Fraser

involved speech at an official school assembly, whereas

the School District’s bracelet ban extends to the entire

school day, not just school-sponsored functions. But like

other courts of appeals, we do not think that this

difference matters. See, e.g., R.O. ex rel. Ochshorn v.

Ithaca City Sch. Dist., 645 F.3d 533, 542 (2d Cir. 2011)

(“[W]e have not interpreted Fraser as limited either to

regulation of school-sponsored speech or to the spoken

word.”); Chandler, 978 F.2d at 529 (concluding that

restriction of vulgar, lewd, and plainly offensive speech

under Fraser is not limited to speech “given at an official

school assembly”); Bystrom by and through Bystrom v.

Fridley High Sch., Indep. Sch. Dist. No. 14, 822 F.2d

747, 753 (8th Cir. 1987) (“It is true that [Fraser]

involved a speech given before a student assembly . . . .

[But] [t]his possible difference, in our view, does not

amount to a legal distinction making the Bethel rule

inapplicable here.”). As we explained, Fraser reflected

an extension of the Court’s obscenity-to-minors

jurisprudence, which permits the government to restrict

30

lewd speech to children where children are either a

captive audience or the intended recipients of the speech.

Children are just as much of a captive audience in the

hallways, cafeteria, or locker rooms as they are in official

school assemblies and classrooms. Naturally, then, we

have never described a school’s authority under Fraser

as being limited to official school functions and

classrooms. See, e.g., J.S., 650 F.3d at 927 (“The first

exception is set out in Fraser, which we interpreted to

permit school officials to regulate “‘lewd,’ ‘vulgar,’

‘indecent,’ and ‘plainly offensive’ speech in school.”

(emphasis in original) (quoting Saxe, 240 F.3d at 213)).

Although Justice Brennan’s concurrence and Justice

Stevens’s dissent in Fraser suggested that this difference

might matter, nothing in the majority opinion endorsed

their distinction. See Fraser, 478 U.S. at 689 (Brennan,

J., concurring) (opining that Fraser’s “speech may well

have been protected had he given it in school but under

different circumstances, where the school’s legitimate

interests in teaching and maintaining civil public

discourse were less weighty”); id. at 696 (Stevens, J.,

dissenting) (“It seems fairly obvious that [Fraser’s]

speech would be inappropriate in certain classroom and

formal social settings. On the other hand, in a locker

room or perhaps in a school corridor the metaphor in the

speech might be regarded as rather routine comment.”).

Indeed, if Fraser were so limited, then a school’s

authority under Fraser would largely merge with its

31

is not.

1. Under Fraser, schools may restrict

ambiguously lewd speech only if it cannot

plausibly be interpreted as commenting on a

social or political matter.

Although Fraser involved plainly lewd, vulgar,

profane, or offensive speech that “offends for the same

reasons obscenity offends,” Saxe, 240 F.3d at 213

(quoting Fraser, 478 U.S. at 685), student speech need

not rise to that level to be restricted under Fraser. We

conclude that schools may also categorically restrict

ambiguous speech that a reasonable observer could

interpret as lewd, vulgar, profane, or offensive—unless,

as explained below, the speech could also plausibly be

interpreted as commenting on a political or social issue.

After all, Fraser made clear that “the determination of

what manner of speech in the classroom or in school

assembly is inappropriate properly rests with the school

board.” 478 U.S. at 683. The Supreme Court’s three

other student-speech cases suggest that courts should

defer to a school’s decisions to restrict what a reasonable

observer would interpret as lewd, vulgar, profane, or

offensive. See Morse, 551 U.S. at 403 (explaining that,

power to reasonably regulate school-sponsored speech

under Kuhlmeier, yet we have always viewed Fraser and

Kuhlmeier as separate exceptions to Tinker. See, e.g.,

J.S., 650 F.3d at 927.

32

under Tinker, courts determine whether school officials

have “reasonably conclude[d]” that student speech will

substantially disrupt the school); id. at 405 (explaining

that, under Kuhlmeier, courts uphold a school’s

reasonable, pedagogically related restrictions on speech

that an observer could reasonably attribute to the school);

id. at 422 (Alito, J., concurring) (explaining that schools

may restrict student speech that could “reasonably be

regarded as encouraging illegal drug use” and that could

not plausibly be interpreted as commenting on a political

or social issue). This makes sense. School officials

know the age, maturity, and other characteristics of their

students far better than judges do. Our review is

restricted to a cold and distant record. And we must take

into account that these same officials must often act

“suddenly and unexpectedly” based on their experience.

Id. at 409–10 (majority opinion); see, e.g., Walker-

Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416–17

(3d Cir. 2003) (“There can be little doubt that speech

appropriate for eighteen-year-old high school students is

not necessarily acceptable for seven-year-old grammar

school students. Human sexuality provides the most

obvious example of age-sensitive matter . . . .” (citing

Fraser, 478 U.S. at 683–84)); Sypniewski, 306 F.3d at

266 (“What is necessary in one school at one time will

not be necessary elsewhere and at other times.”).

It remains the job of judges, nonetheless, to

determine whether a reasonable observer could interpret

33

student speech as lewd, profane, vulgar, or offensive.

See Morse, 551 U.S. at 402 (taking the same approach

with respect to the message of drug advocacy on

Frederick’s banner); see also Christian Legal Soc’y

Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971,

2988 (2010) (“This Court is the final arbiter of the

question whether a public university has exceeded

constitutional constraints, and we owe no deference to

universities when we consider that question.”). Whether

a reasonable observer could interpret student speech as

lewd, profane, vulgar, or offensive depends on the

plausibility of the school’s interpretation in light of

competing meanings; the context, content, and form of

the speech; and the age and maturity of the students. See,

e.g., Chandler, 978 F.2d at 530 (analyzing the word

“scab” on buttons worn by students during a teacher

strike to determine whether it was a vulgar, offensive

epithet or just “common parlance” and concluding that, at

the motion-to-dismiss stage, Fraser did not apply).

Although this is a highly contextual inquiry,

several rules apply. A reasonable observer would not

adopt an acontextual interpretation, and the subjective

intent of the speaker is irrelevant. See Morse, 551 U.S. at

401–02 (explaining that Frederick’s desire to appear on

television “was a description of [his] motive for

displaying the banner” and “not an interpretation of what

the banner sa[id]”); see also Saxe, 240 F.3d at 216–17

(noting that students’ intent to offend or disrupt does not

34

satisfy Tinker). And Fraser is not a blank check to

categorically restrict any speech that touches on sex or

any speech that has the potential to offend. See Morse,

551 U.S. at 401, 409 (refusing to “stretch[] Fraser” so far

as “to encompass any speech that could fit under some

definition of ‘offensive’ and rejecting the argument that

the “BONG HiTS 4 JESUS” message on Frederick’s

banner could be banned under Fraser, even though it “is

no doubt offensive to some”); accord Eugene Volokh,

May ‘Jesus Is Not a Homophobe’ T-shirt Be Banned

From Public High School As ‘Indecent’ And ‘Sexual’?,

The Volokh Conspiracy (Apr. 4, 2012, 3:36 PM),

http://www.volokh.com/2012/04/04/may-jesus-was-not-

a-homophobe-T-shirt-be-banned-from-public-high-

school-as-indecent-and-sexual/ (“But Fraser . . . hardly

suggested that all speech on political and religious

questions related to sexuality and sexual orientation

could be banned from public high school.”). After all, a

school’s mission to mold students into citizens capable of

engaging in civil discourse includes teaching students of

sufficient age and maturity how to navigate debates

touching on sex.

35

2. Fraser does not permit a school to restrict

ambiguously lewd speech that can also

plausibly be interpreted as commenting on a

social or political issue.

A school’s leeway to categorically restrict

ambiguously lewd speech, however, ends when that

speech could also plausibly be interpreted as expressing a

view on a political or social issue. Justices Alito and

Kennedy’s concurrence in Morse adopted a similar

protection for political speech that could be interpreted as

illegal drug advocacy. Their narrower rationale

protecting political speech limits and controls the

majority opinion in Morse, and it applies with even

greater force to ambiguously lewd speech.

Justice Alito’s concurrence, joined by Justice

Kennedy, provided the crucial fourth and fifth votes in

the five-to-four majority opinion. But the two justices

conditioned their votes on the “understanding that (1)

[the majority opinion] goes no further than to hold that a

public school may restrict speech that a reasonable

observer would interpret as advocating illegal drug use

and (2) it provides no support for any restriction of

speech that can plausibly be interpreted as commenting

on any political or social issue.” Morse, 551 U.S. at 422

(Alito, J., concurring); see id. at 425 (regarding the

categorical regulation of non-political advocacy of

ambiguous illegal drug advocacy “as standing at the far

36

reaches of what the First Amendment permits” and

“join[ing] the opinion of the Court with the

understanding that the opinion does not endorse any

further extension”). The purpose of Justice Alito’s

concurrence was to “ensur[e] that political speech will

remain protected within the school setting” (subject, as

always, to Tinker’s substantial-disruption principle).

Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768

(5th Cir. 2007).

Because the votes of Justices Alito and Kennedy

were necessary to the majority opinion and were

expressly conditioned on their narrower understanding

that speech plausibly interpreted as political or social

commentary was protected from categorical regulation,

that limitation is a binding part of Morse. This

conclusion requires a minor detour. The most familiar

situation in which we follow the narrowest rationale was

expressed t by the Supreme Court in Marks v. United

States: when “no single rationale explaining the result

enjoys the assent of five Justices, the holding of the Court

may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest

grounds.” 430 U.S. 188, 193 (1977) (internal quotation

marks and citations omitted). But that situation is not the

only one in which we tally the justices’ views and look

for the narrowest rationale. The Supreme Court and this

Court have both applied the narrowest-grounds approach

in circumstances beyond those posed by Marks,

37

including to determine holdings in majority opinions (not

just plurality opinions involving “no single legal rationale

explain[ing] the result”) 15 and to count even dissenting

justices’ votes that, by definition, could not “explain the

result” (not just the votes of those who “concurred in the

judgments”).16 See United States v. Johnson, 467 F.3d

56, 65 (1st Cir. 2006) (noting that the Supreme Court has

“moved away” from adhering to the strict circumstances

in Marks).

And it makes sense that the limitations in Justice

Alito’s concurrence would narrow the majority opinion.

When an individual justice’s vote is not needed to form a

majority, “the meaning of a majority opinion is to be

found within the opinion itself” because “the gloss that

an individual [j]ustice chooses to place upon it is not

authoritative.” McKoy v. North Carolina, 494 U.S. 433,

15

See discussion of Horn and Bishop infra pp. 30–33.

16

See, e.g., Nichols v. United States, 511 U.S. 738, 746

(1994) (combining the views of four dissenters and

Justice Stewart in Baldasar v. Illinois, 446 U.S. 222

(1980), to form a “holding”); Donovan, 661 F.3d at 182

(“[W]e have looked to the votes of dissenting Justices if

they, combined with votes from plurality or concurring

opinions, establish a majority view on the relevant

issue.”); Student Pub. Interest Research Grp. of N.J., Inc.

v. AT&T Bell Labs., 842 F.2d 1436, 1451 & n.16 (3d Cir.

1988) (same).

38

448 n.3 (1990) (Blackmun, J., concurring). But when an

individual justice joins the majority and is essential to

maintaining the majority, and then writes separately, “the

opinion is not a majority opinion except to the extent that

it accords with his views.” Id. at 462 n.3 (Scalia, J.,

dissenting). Of course, that linchpin justice’s opinion

“cannot add to what the majority opinion holds” by

“binding the other four [j]ustices to what they have not

said” because his views would not be the narrowest

grounds. Id. But that justice’s separate opinion “can

assuredly narrow what the majority opinion holds, by

explaining the more limited interpretation adopted by that

necessary member of the majority.” Id. In that case, the

linchpin justice’s views are “the least common

denominator” necessary to maintain a majority opinion.

Id.; see generally Sonja R. West, Concurring in Part and

Concurring in the Confusion, 104 Mich. L. Rev. 1951

(2006) (advocating the same approach and explaining

that it is consistent with determining precedent from the

traditional Supreme Court’s seriatim opinions).

Indeed, this is not the first time that we have been

compelled to limit a majority opinion by a linchpin

justice’s narrower concurrence. In Horn v. Thoratec, we

considered whether the federal regulation of medical

devices preempts only state-law “requirement[s]”

specific to medical devices or also preempts general

common-law claims not specific to medical devices (such

as negligence). See 376 F.3d 163, 173–74 (3d Cir. 2004).

39

That, in turn, required us to analyze the Supreme Court’s

decision in Medtronic v. Lohr, 518 U.S. 470 (1996). We

read Part V of the Lohr majority opinion—which Justice

Breyer formally joined as the fifth vote—as saying that

only device-specific state-law requirements, not general

common-law claims, are preempted. See Horn, 376 F.3d

at 174 (noting that the majority in Part V conclud[ed] that

common-law claims “escape[]” preemption because

“their generality leaves them outside” of the preempted

category of device-specific requirements (quoting Lohr,

518 U.S. at 502)); id. at 175 (explaining that “Justice

Breyer joined in some parts of Justice Stevens’ plurality

opinion (thus making it a majority opinion at times),”

including “in Part V”). But we also read Justice Breyer’s

concurrence as reaching the opposite conclusion, despite

his having joined that portion of the majority opinion.

See id. Faced with an apparent conflict between Part V

of the majority opinion and Justice Breyer’s concurrence,

we followed the latter because it was narrower, just as the

Fifth, Sixth, Seventh, Eighth, and Ninth Circuits had

done. Id. at 175–76; see also Martin v. Medtronic, 254

F.3d 573, 581–83 (5th Cir. 2001); Kemp v. Medtronic,

231 F.3d 216, 230 (6th Cir. 2000); Mitchell v. Collagen

Corp., 126 F.3d 902, 911–12 (7th Cir. 1997); Papike v.

Tambrands, Inc., 107 F.3d 737, 742 (9th Cir. 1997). In

doing so, we rejected our dissenting colleague’s

argument that the narrowest-grounds approach was

“simply inapplicable” because Justice Breyer joined Part

V of the majority opinion and that the “correct course of

40

action” in the event of a conflict “would be to follow Part

V as the majority opinion.” Horn, 376 F.3d at 184 &

n.30 (Fuentes, J., dissenting); see id. at 183 (explaining

that the Horn majority and the Seventh and Ninth

Circuits “also perceived a contradiction and chose to

ignore Justice Breyer’s vote for Part V, instead crediting

the apparently contrary reasoning in his concurrence”).

Likewise, in United States v. Bishop, 66 F.3d 569,

576–77 (3d Cir. 1995), we relied on the narrower

concurring views of Justices Kennedy and O’Connor to

limit the majority’s opinion in United States v. Lopez,

514 U.S. 549 (1995), which they formally joined as the

fourth and fifth votes. We declined to read the majority

opinion so broadly as to upend judicial deference to

Congress’s judgment about whether an activity

substantially implicates interstate commerce, instead

following the concurrence’s view that the majority had

reached a “necessary though limited holding” that still

“counseled great restraint” before finding that Congress

had transgressed its Commerce Clause power. Bishop,

66 F.3d at 590 (quoting Lopez, 514 U.S. at 568

(Kennedy, J., concurring)). As in Horn, we took that

approach notwithstanding our dissenting colleague’s

argument that we should follow the breadth of the

majority opinion and ignore the narrower concurrence

because “Justices O’Connor and Kennedy joined in the

[majority] opinion.” Id. at 591 (Becker, J., concurring in

part and dissenting in part). As even our dissenting

41

colleague explained, we followed the narrower views of

Justices O’Connor and Kennedy because they “form[ed]

an intermediate bloc [of the majority] which would view

Lopez as case-specific.” Id. And Horn and Bishop are

not the only examples. See, e.g., United States v.

Monclavo-Cruz, 662 F.2d 1285, 1288 (9th Cir. 1981)

(relying on the narrowing construction given to the

majority opinion by Justice Powell, who was also a

necessary member of the majority, to limit the majority’s

holding in South Dakota v. Opperman, 428 U.S. 364

(1976)); United States v. Wilson, 636 F.2d 1161, 1164

(8th Cir. 1980) (similar).

To be sure, the Supreme Court once said—in a

case not involving a linchpin concurrence—that federal

courts should not give “much precedential weight” to a

concurring opinion, even if it coheres with the majority

opinion. Alexander v. Sandoval, 532 U.S. 275, 285 n.5

(2001); see also Vasquez v. Hillery, 474 U.S. 254, 622

n.4 (1986) (describing the Marks rule as “inapplicable” to

an opinion “to which five Justices expressly

subscribed”). Yet we have already decided that this

principle from Alexander is inapplicable to a concurrence

that (1) “cast the so-called ‘swing vote,’ which was

crucial to the outcome of the case and without which

there could be no majority,” and (2) took a narrower

approach than the majority opinion. Horn, 376 F.3d at

174–75 (distinguishing Alexander on this basis).

42

Which brings us back to Justice Alito’s

concurrence in Morse. The linchpin justices in Morse—

Justices Alito and Kennedy—expressly conditioned their

joining the majority opinion on a narrower interpretation

of the opinion—namely, that it did not permit the

restriction of speech that could plausibly be interpreted as

political or social speech. Had they known that lower

courts would ignore their narrower understanding of the

majority opinion—or had the majority opinion expressly

gone farther than their limitations—then, by their own

admission, they would not have joined the majority

opinion. That would have transformed the five-justice

majority opinion into a three-justice plurality opinion,

with their concurring views becoming the controlling

narrowest grounds under an uncontroversial application

of the Marks doctrine. Why, then, should it matter

whether they formally joined the majority opinion or not?

It should not. Ignoring limitations placed on the

majority opinion by a necessary member of the majority

would mean that four justices could “fabricate a majority

by binding a fifth to their interpretation of what they say,

even though he writes separately to explain his own more

narrow understanding.” McKoy, 494 U.S. at 462 n.3

(Scalia, J., dissenting). That produces inexplicable

anomalies. If a four-justice plurality holds X and Y, and

a fifth justice “concurs in the judgment” to hold only X

and rejects Y, the fifth member’s more limited views

become binding under a straightforward application of

43

Marks. The same interpretation is true if the fifth justice

joins the majority opinion and “concurs in part.” Yet if

the same concurring justice joins the majority opinion

while “concurring,” then the majority opinion holding X

and Y becomes binding and the fifth member’s narrower

views evaporate. Such an approach places all of its

weight on the distinction between a justice’s choice to

follow his name with “concurring” instead of “concurring

in part” or “concurring in the judgment.” Cf. West,

Concurring in Part and Concurring in the Confusion,

104 Mich. L. Rev. at 1953–54 (explaining why these

“after the comma” phrases cannot bear such weight);

Tristan C. Pelham-Webb, Note, Powelling for Precedent:

“Binding” Concurrences, 64 N.Y.U. Ann. Surv. Am. L.

693, 737 (2009) (same). That elevates formalism over

substance at the expense of ignoring the very conditions

on which a necessary member of the majority expressly

chose to join the majority.

In short, because Justice Alito’s concurrence

provides “a single legal standard . . . [that] when properly

applied, produce[s] results with which a majority of the

Justices in the case articulating the standard would

agree,” United States v. Donovan, 661 F.3d 174, 182 (3d

Cir. 2011) (alterations in original) (internal quotation

marks and citations omitted), his opinion in Morse forms

the “narrowest grounds necessary to secure a majority,”

Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682,

694 n.7 (3d Cir. 1991), aff’d in part and rev’d in part on

44

other grounds, 505 U.S. 833 (1992). As a result, we

agree with the en banc Fifth Circuit that the limitations

placed on the majority opinion by Justice Alito’s

concurrence are binding on us.17 See Morgan v.

Swanson, 659 F.3d 359, 403 (5th Cir. 2011) (en banc)

(majority opinion of Elrod, J.) (describing Justice Alito’s

Morse concurrence as “controlling”); see also Morgan v.

Plano Indep. Sch. Dist., 589 F.3d 740, 746 n.25 (5th Cir.

2009) (“We have held Justice Alito’s concurrence to be

the controlling opinion in Morse.” (citing Ponce, 508

F.3d at 768)).

17

We have had this same intuition previously. See J.S.,

650 F.3d at 927 (“Notably, Justice Alito’s concurrence in

Morse further emphasizes the narrowness of the Court’s

holding.”). And every court of appeals to address this

question (other than the Seventh Circuit) has shared our

intuition. See Morgan, 589 F.3d at 746 n.25; Barr v.

Lafon, 538 F.3d 554, 564 (6th Cir. 2008) (treating Justice

Alito’s concurrence as the basis for Morse’s “narrow

holding”); Corder v. Lewis Palmer Sch. Dist. No. 38, 566

F.3d 1219, 1228 (10th Cir. 2009) (same). The Seventh

Circuit concluded, without citation or support, that the

narrowest-grounds approachdoes not apply where there is

a majority opinion, as in Morse.Nuxoll ex rel. Nuxoll v.

Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 673 (7th

Cir. 2008). But as we explain, we have already rejected

the Seventh Circuit’s formalist approach when it was

urged by dissenting colleagues in Horn and Bishop.

45

Justice Alito would have protected political or

social speech reasonably interpreted to advocate illegal

drug use, and that protection applies even more strongly

to ambiguously lewd speech. In Morse, the Court added

a new categorical exception to Tinker: student speech

that a reasonable observer could interpret as advocating

illegal drug use but that cannot plausibly be interpreted as

addressing political or social issues. Id. at 422. The

exception was justified because illegal drugs pose an

“immediately obvious,” “grave” and “unique threat to the

physical safety of students.” Id. at 425. Despite that

threat, however, the Court held that speech advocating

illegal drug use is not categorically unprotected if it “can

plausibly be interpreted as commenting on any political

or social issue, including speech on issues such as the

wisdom of the war on drugs or of legalizing marijuana

for medicinal use.” Id. at 422 (internal quotation marks

omitted). Even with that limitation, the Court made clear

that this new exception to Tinker “stand[s] at the far

reaches of what the First Amendment permits.” Id. at

425.

If speech posing such a “grave” and “unique threat

to the physical safety of students” can be categorically

regulated only when it cannot “plausibly be interpreted as

commenting on any political or social issue”—and that

regulation nonetheless “stand[s] at the far reaches of

what the First Amendment permits”—then there is no

reason why ambiguously lewd speech should receive any

46

less protection when it also “can plausibly be interpreted

as commenting on any political or social issue.” Id. at

422, 425. One need not be a philosopher of Mill or

Feinberg’s stature18 to recognize that harmful speech

posing an “immediately obvious” threat to the “physical

safety of students,” id. at 425, presents a far graver threat

to the educational mission of schools—thereby

warranting less protection—than ambiguously lewd

speech that might undercut teaching “the appropriate

form of civil discourse” to students, Fraser, 478 U.S. at

683. It would make no sense to afford a T-shirt

exclaiming “I ♥ pot! (LEGALIZE IT)” protection under

Morse while declaring that a bracelet saying “I ♥

boobies! (KEEP A BREAST)” is unprotected under

Fraser.

Those limits are persuasive on their own terms,

even if we disregard the controlling limitations of Justice

Alito’s Morse concurrence. Fraser reflects the

longstanding notions that “not all speech is of equal First

18

John Stuart Mill and Joel Feinberg are both known for,

among other things, their groundbreaking work on the

relationship between harm and offense and how conduct

of each type might be subject to criminalization. See

generally Joel Feinberg, Harm to Others: The Moral

Limits of the Criminal Law (1984); Joel Feinberg,

Offense to Others: The Moral Limits of the Criminal Law

(1985); John Stuart Mill, On Liberty (1859).

47

Amendment importance” and that “speech on matters of

public concern . . . is at the heart of the First

Amendment’s protection.” Snyder v. Phelps, 131 S. Ct.

1207, 1215 (2011) (quotation marks and citations

omitted); see also Connick v. Myers, 461 U.S. 138, 145

(1983) (“[S]peech on public issues occupies the highest

rung of the hierarchy of First Amendment values, and is

entitled to special protection.” (internal quotation marks

and citations omitted)). And it is only a limited

exception to the otherwise “bedrock principle” of the

First Amendment that “the government may not prohibit

the expression of an idea simply because society finds the

idea itself offensive or disagreeable.” Texas v. Johnson,

491 U.S. 397, 414 (1989); see also Sable Commc’ns of

Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“Sexual

expression which is indecent but not obscene is protected

by the First Amendment.”). The Supreme Court has

never held that schools may bore willy-nilly through that

bedrock principle. But it has made clear that “minors are

entitled to a significant measure of First Amendment

protection” and the government does not “have a free-

floating power to restrict the ideas to which children may

be exposed.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct.

2729, 2736 (2011). To be sure, Fraser rejected the idea

that “simply because an offensive form of expression

may not be prohibited to adults making what the speaker

considers a political point, the same latitude must be

permitted to children in a public school.” Fraser, 478

U.S. at 682. As we have explained, though, Fraser was

48

limited to plainly lewd speech, and that refusal to protect

a student’s plainly lewd speech where the same speech

by an adult would be protected does not extend to

political speech that is not plainly lewd. On that score,

our conclusion puts us in good company with five

justices in Morse19 who were expressly unwilling to

permit a categorical exception to Tinker that would

intrude on political or social speech and two justices20

19

In addition to Justices Alito and Kennedy, three

dissenting justices (Justices Stevens, Souter, and

Ginsburg) would not have extended the Morse exception

to political or social speech. These five justices instead

split over whether Morse’s speech could reasonably be

interpreted as advocating illegal drug use. Morse, 551

U.S. at 444, 448 (Stevens, J., dissenting) (concluding that

Morse’s banner is constitutionally protected because it

could not reasonably be interpreted as advocating illegal

drug use and was at most a “minority[] viewpoint” in

“the national debate about a serious issue” deserving

First Amendment protection).

20

In the majority opinion, Chief Justice Roberts and

Justice Scalia refused to “stretch[] Fraser” so far as to

“encompass any speech that could fit under some

definition of ‘offensive’” specifically to protect “political

and religious speech [that] might be perceived as

offensive to some.” Morse, 551 U.S. at 409; see also id.

at 403 (majority opinion) (“But not even Frederick

argues that the banner conveys any sort of political or

49

who all but said as much.

What’s more, this limitation is consistent with our

previous intuitions as well as those of the Sixth and

Second Circuits. See Saxe, 240 F.3d at 213 (Alito, J.)

(noting that the “dichotomy” between Fraser and Tinker

is “neatly illustrated by the comparison between Cohen’s

[“Fuck the Draft”] jacket and Tinker’s armband”); Defoe,

625 F.3d at 335 n.6 (rejecting the Eleventh Circuit’s

extension of Fraser to displays of the Confederate flag

and instead holding that such displays “by students [are]

protected political speech that school officials may only

regulate by satisfying the Tinker standard” (citing Barr v.

Lefon, 538 F.3d. 554, 569 n.7 (6th Cir. 2008))); Guiles,

religious message. Contrary to the dissent’s suggestion,

this is plainly not a case about political debate over the

criminalization of drug use or possession.”); id. at 406

n.2 (“[T]here is no serious argument that Frederick’s

banner is political speech . . . .”). Although Justice

Thomas joined that portion of the majority opinion, he

would have concluded that “the First Amendment, as

originally understood, does not protect student speech in

public schools” and overruled Tinker. Id. at 410–11

(Thomas, J., concurring). Justice Breyer would have

avoided the “difficult First Amendment issue” and

concluded that “qualified immunity bars [Morse’s] claim

for monetary damages.” Id. at 425 (Breyer, J.,

concurring in the judgment in part and dissenting in part).

50

461 F.3d at 325 (holding Fraser inapplicable because the

T-shirt was not “as plainly offensive as the sexually

charged speech considered in Fraser . . . [,] especially

when considering that [it was] part of an anti-drug

political message”).

Consequently, we hold that the Fraser exception

does not permit ambiguously lewd speech to be

categorically restricted if it can plausibly be interpreted

as political or social speech.

3. Under Fraser, schools may restrict plainly

lewd speech regardless of whether it could

plausibly be interpreted as social or political

commentary.

As the Supreme Court made clear in Fraser,

though, schools may restrict plainly lewd speech

regardless of whether it could plausibly be interpreted to

comment on a political or social issue. Fraser, 478 U.S.

at 682 (“[T]he First Amendment gives a high school

student the classroom right to wear Tinker’s armband,

but not Cohen’s [“Fuck the Draft”] jacket.”). That is true

by definition. Plainly lewd speech “offends for the same

reasons obscenity offends” because the speech in that

category is “no essential part of any exposition of ideas”

and thus carries very “slight social value.” Id. at 683

(quoting Pacifica Found., 438 U.S. at 746 (plurality

opinion)). As with obscenity in general, obscenity to

minors, and all other historically unprotected categories

51

of speech, “the evil to be restricted so overwhelmingly

outweighs the expressive interests, if any, at stake, that

no process of case-by-case adjudication is required”

because “the balance of competing interests is clearly

struck.” Stevens, 130 S. Ct. at 1585–86 (quoting New

York v. Ferber, 458 U.S. 747, 763–64 (1982)). In other

words, we do not engage in a case-by-case determination

of whether obscenity to minors—and by extension,

plainly lewd speech under Fraser—carries social value.

As a result, schools may continue to regulate plainly

lewd, vulgar, profane, or offensive speech under Fraser

even if a particular instance of such speech can

“plausibly be interpreted as commenting on any political

or social issue.” Morse, 551 U.S. at 422 (Alito, J.,

concurring).

In response, the School District recites a mantra

that has Fraser providing schools the ultimate discretion

to define what is lewd and vulgar. It relies on the

Supreme Court’s sentiment that schools may define their

“basic educational mission” and prohibit student speech

that is inconsistent with that mission. Kuhlmeier, 484

U.S. at 266–67.21 Indeed, before Morse, some courts of

21

See also Fraser, 478 U.S. at 683 (“[T]he determination

of what manner of speech in the classroom or in school

assembly is inappropriate properly rests with the school

board.”); Pico, 457 U.S. at 864 (“[F]ederal courts should

not ordinarily ‘intervene in the resolution of conflicts

52

appeals adopted that broad interpretation of the Supreme

Court’s student-speech cases. See, e.g., LaVine v. Blaine

Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001) (“[A]

school need not tolerate student speech that is

inconsistent with its basic educational mission.”); Boroff

v. Van Wert City Bd. of Educ., 220 F.3d 465, 470 (6th

Cir. 2000) (“[W]here Boroff’s T-shirts contain symbols

and words that promote values that are so patently

contrary to the school’s educational mission, the School

has the authority, under the circumstances of this case, to

prohibit those T-shirts [under Fraser].”).

Whatever the face value of those sentiments, such

sweeping and total deference to school officials is

incompatible with the Supreme Court’s teachings. In

Tinker, Hazelwood, and Morse, the Supreme Court

independently evaluated the meaning of the student’s

speech and the reasonableness of the school’s

which arise in the daily operation of school systems.’”

(quoting Epperson v. Arkansas, 393 U.S. 97, 104

(1968))); Wood v. Strickland, 420 U.S. 308, 326 (1975)

(“It is not the role of the federal courts to set aside

decisions of school administrators which the court may

view as lacking a basis in wisdom or compassion.”); see

also Kuhlmeier, 484 U.S. at 273 (“[T]he education of the

Nation’s youth is primarily the responsibility of parents,

teachers, and state and local school officials, and not of

federal judges.”).

53

interpretation and actions. There is no reason the

school’s authority under Fraser should receive special

treatment. More importantly, such an approach would

swallow the other student-speech cases, including Tinker,

effectively eliminating judicial review of student-speech

restrictions. See Guiles, 461 F.3d at 327 (making this

point). That is precisely why the Supreme Court in

Morse explicitly rejected total deference to school

officials:

The opinion of the Court does not endorse the

broad argument advanced by petitioners and

the United States that the First Amendment

permits public school officials to censor any

student speech that interferes with a school's

“educational mission.” . . . The “educational

mission” argument would give public school

authorities a license to suppress speech on

political and social issues based on

disagreement with the viewpoint expressed.

The argument, therefore, strikes at the very

heart of the First Amendment.

Morse, 551 U.S. at 423 (Alito, J., concurring).

Instead, Morse settled on a narrower view of

deference, deferring to a school administrator’s

“reasonable judgment that Frederick’s sign qualified as

drug advocacy” only if the speech could not plausibly be

interpreted as commenting on a political or social issue.

54

Morse, 551 U.S. at 441 (Stevens, J., dissenting); see also

id. at 408 (majority opinion) (“[S]chools [may] restrict

student expression that they reasonably regard as

promoting illegal drug use.”); id. at 422 (Alito, J.,

concurring) (“[A] public school may restrict speech that a

reasonable observer would interpret as advocating illegal

drug use . . . .”). Our approach to lewd speech provides

the same degree of deference to schools as the Court did

in Morse. We defer to a school’s reasonable judgment

that an observer could interpret ambiguous speech as

lewd, vulgar, profane, or offensive only if the speech

could not plausibly be interpreted as commenting on a

political or social issue.

The School District invokes a parade of horribles

that, in its view, would follow from our framework:

protecting ambiguously lewd speech that comments on

political or social issues—like the bracelets in this case—

will encourage students to engage in more egregiously

sexualized advocacy campaigns, which the schools will

be obliged to allow. See Pa. Sch. Bd. Ass’n Amicus Br.

in Supp. of Appellant at 19 (listing examples, including

“I ♥ Balls!” apparel for testicular cancer, and “I ♥ Va Jay

Jays” apparel for the Human Papillomaviruses); App.

275–76 (raising the possibility of apparel bearing the

slogans “I ♥ Balls!” or “I ♥ Titties!”). Like all slippery-

slope arguments, the School District’s point can be

inverted with equal logical force. If schools can

categorically regulate terms like “boobies” even when the

55

message comments on a social or political issue, schools

could eliminate all student speech touching on sex or

merely having the potential to offend. See Frederick

Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 381

(1985) (“[I]n virtually every case in which a slippery

slope argument is made, the opposing party could with

equal formal and linguistic logic also make a slippery

slope claim.”). The ease of turning a slippery-slope

argument on its head explains why the persuasiveness of

such a contention does not depend on its logical validity.

Id. Instead, the correctness of a slippery-slope argument

depends on an empirical prediction that a proposed rule

will increase the likelihood of some other undesired

outcome occurring. Id. (“To some people, one argument

will seem more persuasive than the other because the

underlying empirical reality . . . makes one equally

logical possibility seem substantially more likely to occur

than the other.”); see also Eugene Volokh, The

Mechanism of the Slippery Slope, 116 Harv. L. Rev.

1026, 1066–71 (2003) (making a similar point in the

context of extending precedent). Because courts usually

lack the data necessary for such a prediction, “fear of . . .

what’s at the bottom of a long, slippery slope is not a

good reason for today’s decision.” Marozsan v. United

States, 852 F.2d 1469, 1499 (7th Cir. 1988) (en banc)

(Easterbrook, J., dissenting). “The terror of extreme

hypotheticals produces much bad law,” and so our

answer to the School District’s “extreme hypothetical[s]”

is that we will “cross that bridge when we come to it.”

56

Id.

To make matters worse, the School District has

greased the supposedly slippery slope by omitting any

empirical evidence. We have no reason to think either

that the parents of middle-school students will be willing

to allow their children to wear apparel advocating

political or social messages in egregious terms or that a

student will overcome the typical middle-schooler’s

embarrassment, immaturity, and social pressures by

wearing such apparel. And many of the School District’s

hypotheticals pose no worries under our framework. A

school could categorically restrict an “I ♥ tits! (KEEP A

BREAST)” bracelet because, as the Supreme Court

explained in Pacifica, the word “tits” (and also

presumably the diminutive “titties”) is a patently

offensive reference to sexual organs and thus obscene to

minors. See Pacifica Found., 438 U.S. at 745–46

(plurality opinion) (explaining that the comedian George

Carlin’s seven “dirty” words, which includes “tits,”

“offend for the same reasons that obscenity offends”);

see also LaVine, 257 F.3d at 989 (concluding that a poem

“filled with imagery of violent death and suicide” was

not “vulgar, lewd, obscene, or plainly offensive because

it was “not ‘an elaborate, graphic, and explicit sexual

metaphor’ as was the student’s speech in Fraser, nor

[did] it contain the infamous seven words that cannot be

said on the public airwaves”); cf. FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 517–18 (2009) (concluding

57

it was not arbitrary or capricious for the FCC to regulate

even “isolated uses of sexual and excretory words,”

including Carlin’s seven “dirty” words, because “[e]ven

isolated utterances can be made in pander[ing], . . .

vulgar and shocking manners” and can thus “constitute

harmful first blow[s] to children” (alterations in

original)). The same is true of a student’s drawings of

stick figures in sexual positions, even if used to promote

contraceptive use. Cf. R.O. ex rel. Ochshorn City Sch.

Dist., 645 F.3d 533, 543 (2d Cir. 2011). And even if

students engage in more questionable speech, the school

retains the government’s normal sovereign authority to

regulate speech as well as its additional powers as

educator to restrict speech under Tinker, Kuhlmeier, and

Morse. See, e.g., Hardwick v. Heyward, 711 F.3d 426,

440 (4th Cir. 2013) (holding that a school’s prohibition

on wearing T-shirts depicting the Confederate battle flag

was permissible under Tinker because of a history of

racial tension and disruptions related to the Confederate

flag).

By contrast, there is empirical support for the

opposite worry. Some schools, if empowered to do so,

might eliminate all student speech touching on sex or

merely having the potential to offend. Indeed, the

Middle School’s administrators seemed inclined to do

just that. They initially testified that they could ban the

word “breast,” even if used in the context of a breast-

cancer-awareness campaign, because the word, by itself,

58

“can be construed as [having] a sexual connotation.”

App. 490, 497. If anything, the fear of a slippery slope

cuts against the School District.

In a similar vein, we need not speculate on

context-dependent hypotheticals to give guidance to

schools and district courts. The fault lines of our

framework are adequately mapped out in the rest of First

Amendment jurisprudence. The Supreme Court’s

obscenity-to-minors case law marks the contours of

plainly lewd speech. See, e.g., Brown v. Entm’t Merchs.

Ass’n, 131 S. Ct. 2729, 2735 (refusing to extend the

categorical nonprotection for obscenity to minors to

speech that is violent from a minor’s perspective);

Ginsberg, 390 U.S. at 638 (approving a state prohibition

on selling minors sexual material that would be obscene

from the minor’s perspective). Those contours

necessarily admit of some flexibility and can be

“adjust[ed] . . . ‘to social realities by permitting the

[sexual] appeal of this type of material to be assessed”

from the minors’ perspective. Id.; see also Fox

Television Stations, Inc., 556 U.S. at 520 (explaining that

based on the obscenity-to-minors case law, the FCC

properly “dr[aws] distinctions between the offensiveness

of particular words based upon the context in which they

appeared” on case-by-case basis without having to rely

on empirical evidence as to the degree of offensiveness).

And the government is not a stranger to determining

whether speech plausibly comments on a political or

59

social issue. For that, we look to case law on whether

speech involves a matter of public concern. See, e.g.,

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)

(“Pickering and the cases decided in its wake identify

two inquiries to guide interpretation of the constitutional

protections accorded to public employee speech. The

first requires determining whether the employee spoke as

a citizen on a matter of public concern. . . . If the answer

is yes, then the possibility of a First Amendment claim

arises.”). Of course, these rules lack “perfect clarity”—

just as every legal rule contains fuzzy borders. Brown,

131 S. Ct. at 2764 (Breyer, J., dissenting); cf. United

States v. Williams, 553 U.S. 285, 304 (2008) (“[P]erfect

clarity and precise guidance have never been required

even of regulations that restrict expressive activity.”).

Even so, just because a “precise standard” for political

speech or plain lewdness (obscenity to minors) “proves

elusive,” it is still “easy enough to identify instances that

fall within a legitimate regulation.” Brown, 131 S. Ct. at

2764 (Breyer, J., dissenting). Over time, the fault lines

demarcating plainly lewd speech and political or social

speech will settle and become more rule-like as precedent

accumulates.

To recap: Under the government’s sovereign

authority, a school may categorically ban obscenity,

fighting words, and the like in schools; the student-

speech cases do not supplant the government’s sovereign

powers to regulate speech. See, e.g., Doe v. Pulaski

60

Cnty. Special Sch. Dist., 306 F.3d 616, 626, 626–27 (8th

Cir. 2002) (en banc) (holding that the government, as K-

12 educator, could punish a student for making a true

threat); Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677

F.3d 109, 118 (2d Cir. 2012) (Pooler, J., dissenting)

(“Indeed, despite the expansion of school-specific

exceptions to the First Amendment’s general prohibition

against government restrictions on speech, certain well-

settled rules apply to adults and adolescents alike.”).

Under Fraser, a school may categorically restrict plainly

lewd, vulgar, or profane speech that “offends for the

same reasons obscenity offends” regardless of whether it

can plausibly be interpreted as commenting on social or

political issues. Saxe, 240 F.3d at 213 (quoting Fraser,

478 U.S. at 685). As we have explained, see supra at

20–21, plainly lewd speech cannot, by definition, be

plausibly interpreted as political or social commentary

because the speech offends for the same reason obscenity

offends and thus has slight social value. Fraser also

permits a school to categorically restrict ambiguous

speech that a reasonable observer could interpret as

having a lewd, vulgar, or profane meaning so long as it

could not also plausibly be interpreted as commenting on

a social or political issue. But Fraser does not permit a

school to categorically restrict ambiguous speech that a

reasonable observer could interpret as having a lewd,

vulgar, or profane meaning and could plausibly interpret

as commenting on a social or political issue. And of

course, if a reasonable observer could not interpret the

61

speech as lewd, vulgar, or profane, then Fraser simply

does not apply. As always, a school’s other powers over

student speech under Tinker, Kuhlmeier, and Morse

remain as a backstop.

C. The Middle School’s ban on “I ♥ boobies!

(KEEP A BREAST)” bracelets

Under this framework, the School District’s

bracelet ban is an open-and-shut case. The “I ♥ boobies!

(KEEP A BREAST)” bracelets are not plainly lewd. The

slogan bears no resemblance to Fraser’s “pervasive

sexual innuendo” that was “plainly offensive to both

teachers and students.” Fraser, 478 U.S. at 683.

Teachers had to request guidance about how to deal with

the bracelets, and school administrators did not conclude

that the bracelets were vulgar until B.H. and K.M. had

worn them every day for nearly two months. In addition,

the Middle School used the term “boobies” in

announcing the bracelet ban over the public address

system and the school television station. What’s more,

the bracelets do not contain language remotely akin to the

seven words that are considered obscene to minors on

broadcast television. Pacifica Found., 438 U.S. at 745–

46 (plurality opinion); LaVine, 257 F.3d at 989

(concluding that speech was not vulgar, lewd, obscene, or

plainly offensive because it was “not ‘an elaborate,

graphic, and explicit sexual metaphor’ as was the

student’s speech in Fraser, nor [did] it contain the

62

infamous seven words that cannot be said on the public

airwaves” under Pacifica). Indeed, the term “boobie” is

no more than a sophomoric synonym for “breast.” And

as the School District also concedes, a reasonable

observer would plausibly interpret the bracelets as part of

a national breast-cancer-awareness campaign, an

undeniably important social issue. Oral Arg. Tr. at

10:11–16; see also K.J. ex rel. Braun v. Sauk Prairie Sch.

Dist., No. 11-CV-622, slip op. at 14 (W.D. Wis. Feb. 6,

2012) (“When one reads the entire phrase, it is clearly a

message designed to promote breast cancer awareness.”).

Accordingly, the bracelets cannot be categorically

banned under Fraser.22

IV.

Fraser, of course, is only one of four school-

specific avenues for regulating student speech.23 The

22

Because we conclude that the slogan is not plainly

lewd and is plausibly interpreted as commenting on a

social issue, the bracelets are protected under Fraser. As

a result, we need not determine whether a reasonable

observer could interpret the bracelets’ slogan as lewd.

23

As the Supreme Court has recently reaffirmed, there

might be other exceptions to Tinker that have not yet

been identified by the courts. See Morse, 551 U.S. at

408–09 (identifying a new exception to the Tinker

framework for speech that is reasonably interpreted as

advocating illegal drug use and that is not plausibly

63

parties rightly agree that Kuhlmeier and Morse do not

apply: no one could reasonably believe that the Middle

School was somehow involved in the morning fashion

decisions of a few students, and no one could reasonably

interpret the bracelets as advocating illegal drug use.

That leaves only Tinker as possible support for the

School District’s ban. Under Tinker’s “general rule,” the

government may restrict school speech “that threatens a

specific and substantial disruption to the school

environment” or “inva[des] . . . the rights of others.”

Saxe, 240 F.3d at 211 (citing Tinker, 393 U.S. at 504).

“[I]f a school can point to a well-founded expectation of

disruption—especially one based on past incidents

arising out of similar speech—the restriction may pass

interpreted as commenting on any political or social

issue). Compare id. at 405 (“Fraser established that the

mode of analysis set forth in Tinker is not absolute.”),

and id. at 406 (“And, like Fraser, [Kuhlmeier] confirms

that the rule of Tinker is not the only basis for restricting

student speech.”), with id. at 423 (Alito, J., concurring)

(“I join the opinion of the Court on the understanding

that the opinion does not hold that the special

characteristics of the public schools necessarily justify

any other speech restrictions.” (emphasis added)). Here,

however, the School District relies solely on the existing

school-speech framework and does not propose any new

bases for restricting student speech.

64

constitutional muster.” Id. at 212; J.S. v. Blue Mountain

Sch. Dist., 650 F.3d 915, 928 (3d Cir. 2011) (en banc)

(“[T]he School District need not prove with absolute

certainty that substantial disruption will occur.”). The

School District has the burden of showing that the

bracelet ban is constitutional under Tinker. See J.S., 650

F.3d at 928. That it cannot do.

Tinker meant what it said: “a specific and

significant fear of disruption, not just some remote

apprehension of disturbance.” Id. Tinker’s black

armbands did not meet this standard, even though the

armbands “caused comments, warnings by other

students, the poking of fun at them, . . . a warning by an

older football player that other, nonprotesting students

had better let them alone,” and the “wreck[ing]” of a

math teacher’s lesson period. Tinker, 393 U.S. at 517

(Black, J., dissenting).

Here, the record of disruption is even skimpier.

When the School District announced the bracelet ban, it

had no more than an “undifferentiated fear or remote

apprehension of disturbance.” Sypniewski, 307 F.3d at

257. The bracelets had been on campus for at least two

weeks without incident. B.H., 827 F. Supp. 2d at 408;

see also App. 13 (“[N]one of the three principals had

heard any reports of disruption or student misbehavior

linked to the bracelets. Nor had any of the principals

heard reports of inappropriate comments about

65

‘boobies.’”). That track record “speaks strongly against a

finding of likelihood of disruption.” Sypniewski, 307

F.3d at 254.

The School District instead relies on two incidents

that occurred after the ban. In one, a female student told

a teacher that she believed some boys had remarked to

girls about their “boobies” in relation to the bracelets—

an incident that was never confirmed. B.H., 827 F. Supp.

2d at 408. In the other, two female students were

discussing the bracelets during lunch, and a boy

interrupted them to say “I want boobies” while “making

inappropriate gestures with two spherical candies.” Id.

The boy was suspended for a day. Id.

Even assuming that disruption arising after a

school’s speech restriction could satisfy Tinker—a

question we need not decide today—these two isolated

incidents hardly bespeak a substantial disruption caused

by the bracelets. “[S]tudent expression may not be

suppressed simply because it gives rise to some slight,

easily overlooked disruption, including but not limited to

‘a showing of mild curiosity’ by other students,

‘discussion and comment’ among students, or even some

‘hostile remarks’ or ‘discussion outside of the

classrooms’ by other students.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1271–72 (11th Cir.

2004) (internal quotation marks and citations omitted).

Given that Tinker’s black armband—worn to protest a

66

controversial war and divisive enough to prompt

reactions from other students—was not a substantial

disruption, neither is the “silent, passive expression” of

breast-cancer awareness.24 Tinker, 393 U.S. at 508. If

24

According to B.H. and K.M., Tinker’s substantial-

disruption standard does not permit a school to restrict

speech because of the heckler’s veto of other students’

disruptive reactions. See Appellees’ Br. at 35 (emphasis

added). Because no forecast of substantial disruption

would be reasonable on this record under any meaning of

that term, we need not determine the precise interplay

between the anti-heckler’s veto principle present

elsewhere in free-speech doctrine and Tinker’s

substantial-disruption standard in public schools.

Compare Zamecnik, 636 F.3d at 879 (noting that Tinker

endorsed both the heckler’s veto doctrine and the

substantial-disruption test and concluding that other

students’ harassment of “Zamecnik because of their

disapproval of her [“Be Happy, Not Gay” T-shirt] is not a

permissible ground for banning it”), and Holloman, 370

F.3d at 1275–76 (interpreting Tinker as endorsing an

anti-heckler’s veto principle, concluding that “[w]hile the

same constitutional standards do not always apply in

public schools as on public streets, we cannot afford

students less constitutional protection simply because

their peers might illegally express disagreement through

violence instead of reason”), with Taylor v. Roswell

Indep. Sch. Dist., 713 F.3d 25, 38 (10th Cir. Apr. 8,

67

anything, the fact that these incidents did not occur until

after the School District banned the bracelets suggests

that the ban “exacerbated rather than contained the

disruption in the school.” J.S., 650 F.3d at 931 (drawing

this same conclusion on a similar record).

Undeterred, the School District invokes the other

half of Tinker’s general rule, arguing that the bracelets

invade other students’ Title IX rights to be free from

sexual harassment. See Tinker, 393 U.S. at 513. Under

Title IX, students may sue federally-funded schools that

“act[] with deliberate indifference” to “harassment that is

so severe, pervasive, and objectively offensive . . . that

the victim students are effectively denied equal access to

an institution’s resources and opportunities.” Saxe, 240

F.3d at 205–06 (quoting Davis ex rel. LaShonda D. v.

Monroe Cnty. Bd. of Educ., 516 U.S. 629, 651 (1999)).

According to the School District, the “I ♥ boobies!

(KEEP A BREAST)” bracelet was “deemed

inappropriate for school due to the likelihood of a

resultant increase in student-on-student sexual

harassment.” Sch. Dist.’s Br. at 54.

2013) (“Plaintiffs note that most disruptions occurred

only because of wrongful behavior of third parties and

that no Plaintiffs participated in these activities. . . . This

argument might be effective outside the school context,

but it ignores the ‘special characteristics of the school

environment.’” (quoting Tinker, 393 U.S. at 506)).

68

That argument suffers from several flaws, not the

least of which is the School District’s failure to raise it in

the District Court and that Court’s consequent failure to

address it. Freeman v. Pittsburgh Glass Works, LLC,

709 F.3d 240, 249 (3d Cir. 2013) (“We generally refuse

to consider issues that the parties have not raised below.”

(citing Singleton v. Wulff, 428 U.S. 106, 120 (1976))).

But there is an even more basic reason why the School

District’s invocation of Title IX is not the shield it claims

to be. Even assuming that protecting students from

harassment under Title IX would satisfy Tinker’s rights-

of-others prong,25 the School District does not explain

25

As we have repeatedly noted, “the precise scope of

Tinker’s ‘interference with the rights of others’ language

is unclear.” Saxe, 240 F.3d at 217 (quoting Tinker, 393

U.S. at 504); DeJohn v. Temple Univ., 537 F.3d 301, 319

(3d Cir. 2008). And the Supreme Court has “never

squarely addressed whether harassment, when it takes the

form of pure speech, is exempt from First Amendment

protection.” Saxe, 240 F.3d at 207. We need not address

either of these points today. Even if Tinker permits

school regulation of pure speech that would constitute

“harassment” under Title IX, the School District has not

offered any explanation or evidence of how passively

wearing the “I ♥ boobies! (KEEP A BREAST)” bracelets

would create such a severe and pervasive environment in

the Middle School. Cf. Saxe, 240 F.3d at 204 (Alito, J.)

(“There is no categorical ‘harassment exception’ to the

69

why the bracelets would breed an environment of

pervasive and severe harassment. See, e.g., DeJohn v.

Temple Univ., 537 F.3d 301, 320 (3d Cir. 2008)

(“[U]nless harassment is qualified with a standard akin to

a severe or pervasive requirement, [an anti-]harassment

policy may suppress core protected speech.”); Saxe, 240

F.3d at 217 (rejecting a school district’s similar argument

that it could ban speech creating a “hostile environment”

without showing that the particular speech covered by the

policy would create a severe or pervasive environment);

see also Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist.

No. 204, 523 F.3d 668, 676 (7th Cir. 2008) (“[I]t is

highly speculative that allowing the plaintiff to wear a T-

shirt that says “Be Happy, Not Gay” would have even a

slight tendency to provoke such incidents [of student-on-

student harassment], or for that matter to poison the

educational atmosphere.”).

The bracelet ban cannot be upheld on the authority

of Tinker.

V.

Because the School District’s ban cannot pass

scrutiny under Fraser or Tinker, B.H. and K.M. are likely

to succeed on the merits. In light of that conclusion, the

First Amendment’s free speech clause.”); Rodriguez v.

Maricopa Cnty. Cmty. College Dist., 605 F.3d 703, 708

(9th Cir. 2010) (agreeing with Saxe’s statement).

70

remaining preliminary-injunction factors also favor them.

The ban prevents B.H. and K.M. from exercising their

right to freedom of speech, which “unquestionably

constitutes irreparable injury.” K.A. ex rel. Ayers v.

Pocono Mountain Sch. Dist., 710 F.3d 99, 113 (3d Cir.

2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality opinion)). An after-the-fact money judgment

would hardly make up for their lost opportunity to wear

the bracelets in school. See Elrod, 427 U.S. at 374 n.29

(“The timeliness of political speech is particularly

important.”).

And the preliminary injunction does not “result in

even greater harm to” the School District, the non-

moving party. Allegheny Energy, Inc. v. DQE, Inc., 171

F.3d 153, 158 (3d Cir. 1999). The School District

complains that unless the bracelet ban stands, it “has no

clear guidance” on how to enforce its dress code.

Appellant’s Br. at 60. But the injunction addresses only

the School District’s ban of the “I ♥ boobies! (KEEP A

BREAST)” bracelets. It does not enjoin the School

District’s regulation of other types of apparel, such as the

“Save the ta-tas” T-shirt or testicular-cancer-awareness

apparel bearing the phrase “feelmyballs.org.” Whether

the injunction stays or goes, the School District will have

to continue making individualized assessments of

whether it may restrict student speech consistent with the

First Amendment, just as school administrators have

always had to do. See, e.g., Castorina ex rel. Rewt v.

71

Madison Cnty. Sch. Bd., 246 F.3d 536, 543 (6th Cir.

2001) (“The foregoing discussion of the three Supreme

Court . . . cases demonstrates the importance of the

factual circumstances in school speech cases . . . .”). The

District Court’s injunction against the bracelet ban does

not change that.

Lastly, granting the preliminary injunction furthers

the public interest. The School District argues that the

injunction eliminates its “authority to manage its student

population” and thus harms the public. Appellant’s Br. at

61. Again, that hyperbolic protest ignores the narrow

breadth of the injunction, which addresses only the

constitutionality of the bracelet ban under the facts of this

case. More importantly, allowing a school’s

unconstitutional speech restriction to continue

“vindicates no public interest.” K.A., 2013 WL 915059,

at *11 (citation omitted). For these reasons, the District

Court did not abuse its discretion by enjoining the School

District’s bracelet ban.

* * * * *

School administrators “have a difficult job,” and

we are well-aware that the job is not getting any easier.

Morse, 551 U.S. at 409. Besides the teaching function,

school administrators must deal with students distracted

by cell phones in class and poverty at home, parental

under- and over-involvement, bullying and sexting,

preparing students for standardized testing, and ever-

72

diminishing funding. When they are not focused on

those issues, school administrators must inculcate

students with “the shared values of a civilized social

order.” Fraser, 478 U.S. at 683; see also McCauley v.

Univ. of the V.I., 618 F.3d 232, 243 (3d Cir. 2010)

(quoting Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954)) (“Public elementary and high school education is

as much about learning how to be a good citizen as it is

about multiplication tables and United States history.”).

We do not envy those challenges, which require

school administrators “to make numerous difficult

decisions about when to place restrictions on speech in

our public schools.” Morgan v. Swanson, 659 F.3d 359,

420 (5th Cir. 2011) (en banc) (majority opinion of Elrod,

J.). And the School District in this case was not

unreasonably concerned that permitting “I ♥ boobies!

(KEEP A BREAST)” bracelets in this case might require

it to permit other messages that were sexually oriented in

nature. But schools cannot avoid teaching our citizens-

in-training how to appropriately navigate the

“marketplace of ideas.” Just because letting in one idea

might invite even more difficult judgment calls about

other ideas cannot justify suppressing speech of genuine

social value. Tinker, 393 U.S. at 511 (“The classroom is

peculiarly the ‘marketplace of ideas.’ The Nation’s

future depends upon leaders trained through wide

exposure to that robust exchange of ideas which

discovers truth ‘out of a multitude of tongues,’ (rather)

73

than through any kind of authoritative selection.’”

(quoting Keyishian v. Bd. of Regents of Univ. of State of

N.Y., 385 U.S. 589, 603 (1967))); see id. at 511

(“[S]chool officials cannot suppress ‘expressions of

feelings with which they do not wish to contend.’”

(citation omitted)).

We will affirm the District Court’s order granting a

preliminary injunction.

74

HARDIMAN, Circuit Judge, dissenting with whom

CHAGARES, JORDAN, GREENAWAY, JR., and

GREENBERG, join.

Today the Court holds that twelve-year-olds have a

constitutional right to wear in school a bracelet that says ―I ♥

boobies! (KEEP A BREAST).‖ Because this decision is

inconsistent with the Supreme Court‘s First Amendment

jurisprudence, I respectfully dissent.

I

My colleagues conclude that the Supreme Court‘s

decision in Bethel School District No. 403 v. Fraser, 478 U.S.

675 (1986), cannot justify the Easton Area School District‘s

bracelet ban ―because [the bracelets] comment on a social

issue.‖ Maj. Typescript at 6. This limitation on the ability of

schools to regulate student speech that could reasonably be

deemed lewd, vulgar, plainly offensive, or constituting sexual

innuendo finds no support in Fraser or its progeny. The

Majority‘s ―high value speech‖ modification of Fraser is

based on the following two premises it derives from the

Supreme Court‘s decision in Morse v. Frederick, 551 U.S.

393 (2007): first, that Justice Alito‘s concurrence in Morse is

the ―controlling‖ opinion in that case, Maj. Typescript at 21

n.10, 43, 45, 47; and second, that Morse ―modified‖ the

Supreme Court‘s decision in Fraser, Maj. Typescript at 6,

46–51. Both premises are wrong.

A

I begin with the Majority‘s first premise, namely, that

Justice Alito‘s concurrence in Morse is the ―controlling‖

opinion in that case, despite the fact that Chief Justice

1

Roberts‘s majority opinion was joined in full by four other

Justices. Maj. Typescript at 36–46. This distinctly minority

view is contrary both to the understanding of Morse

expressed by eight of our sister Courts of Appeals and to what

we ourselves have repeatedly articulated to be the Court‘s

holding in Morse. By endorsing the Fifth Circuit‘s mistaken

understanding of Morse, the Majority applies an incorrect

legal standard that leads to the unfortunate result the Court

reaches today.

The notion that Justice Alito‘s concurrence in Morse is

the controlling opinion flows from a misunderstanding of the

Supreme Court‘s ―narrowest grounds‖ doctrine as established

in Marks v. United States, 430 U.S. 188 (1977). In Marks,

the petitioners had been convicted of distributing obscene

materials pursuant to jury instructions that were modeled on

the definition of obscenity articulated in Miller v. California,

413 U.S. 15 (1973). Marks, 430 U.S. at 190. Because the

petitioners‘ conduct occurred before the Court had decided

Miller, they argued that due process entitled them ―to jury

instructions not under Miller, but under the more favorable

[obscenity] formulation of Memoirs v. Massachusetts.‖ Id.

That formulation was unclear, however, because the Memoirs

Court had issued a fractured decision; no more than three of

the six Justices who voted for the judgment endorsed any one

of three separate opinions, each of which articulated a

different standard for obscenity. See Memoirs v.

Massachusetts, 383 U.S. 413, 414, 418 (1966) (plurality

opinion) (Justice Brennan, joined by Chief Justice Warren

and Justice Fortas, stating that obscenity may be proscribed if

it is ―utterly without redeeming social value‖); id. at 421, 424

(Black and Douglas, JJ., concurring in judgment) (concurring

separately on the grounds that obscenity cannot be

2

proscribed); id. at 421 (Stewart, J., concurring in judgment)

(concurring on the grounds that only hard-core pornography

is proscribable as obscene). The lack of a majority opinion in

Memoirs led the Sixth Circuit in Marks to reject the

petitioners‘ argument that the plurality‘s ―utterly without

redeeming social value‖ standard was the governing rule. It

reasoned that because ―the Memoirs standards never

commanded the assent of more than three Justices at any one

time . . . Memoirs never became the law.‖ Marks, 430 U.S. at

192 (describing the lower court‘s holding).

On appeal, the Supreme Court rejected the Sixth

Circuit‘s reasoning and articulated the following standard:

―When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five

Justices, ‗the holding of the Court may be viewed as that

position taken by those members who concurred in the

judgments on the narrowest grounds . . . .‘‖ Id. at 193

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)

(plurality opinion)). Based on this reasoning, the Court

concluded that because three Justices joined the plurality

opinion and Justices Black and Douglas ―concurred on

broader grounds,‖ ―[t]he view of the Memoirs plurality . . .

constituted the holding of the Court and provided the

governing standards.‖ Marks, 430 U.S. at 193–94.

As Marks demonstrates, the narrowest grounds rule is

a necessary tool for deciphering the holding of the Court

when there is no majority opinion. See, e.g., Grutter v.

Bollinger, 539 U.S. 306, 325 (2003) (attempting to apply the

Marks rule to derive a holding in the ―fractured decision‖

Regents of the University of California v. Bakke, 438 U.S.

265 (1978)). Contrary to the Majority‘s holding today,

neither Marks nor other Supreme Court decisions support the

3

―unprecedented argument that a statement of legal opinion

joined by five Justices of th[e] Court does not carry the force

of law,‖ Vasquez v. Hillery, 474 U.S. 254, 261 n.4 (1986).

Rather, the narrowest grounds rule applies only to ―discern a

single holding of the Court in cases in which no opinion on

the issue in question has garnered the support of a majority.‖

Id.; cf. Black‘s Law Dictionary 1201 (9th ed. 2009) (defining

a ―majority opinion‖ as ―[a]n opinion joined in by more than

half the judges considering a given case‖).

Unable to find persuasive Supreme Court authority to

buttress its novel reading of Marks, the Majority argues that

our Court has ―applied the narrowest-grounds approach in

circumstances beyond those posed by Marks, including to

determine holdings in majority opinions.‖ Maj. Typescript at

37–38 (footnotes, citation, and internal quotation marks

omitted). For support, the Majority cites our decisions in

Horn v. Thoratec Corp., 376 F.3d 163 (3d Cir. 2004), and

United States v. Bishop, 66 F.3d 569 (3d Cir. 1995). Maj.

Typescript at 39–42. Neither case counsels the Majority‘s

application of the narrowest-grounds doctrine to interpret

Morse.

In Horn, we looked to Justice Breyer‘s concurrence in

Medtronic v. Lohr, 518 U.S. 470 (1996), for guidance on how

to address an issue central to our case, but that the Lohr Court

discussed only in dicta. See Horn, 376 F.3d at 175–76

(comparing Justice Breyer‘s ―more narrow‖ view on

preemption with ―Justice Stevens‘ sweeping pronouncement

[in his plurality opinion] that [the statute at issue] almost

never preempts a state common law claim‖). Likewise, in

Bishop, we cited Justice Kennedy‘s concurrence in United

States v. Lopez, 514 U.S. 549 (1995), in order to reinforce the

already established principle that courts must exercise ―‗great

4

restraint‘ before a court finds Congress to have overstepped

its commerce power‖ despite Lopez‘s revolutionary holding.

Bishop, 66 F.3d at 590 (quoting Lopez, 514 U.S. at 568

(Kennedy, J., concurring)). Critically, in neither of these

cases did we indicate a belief that a concurring Justice can

create a new rule of law simply by both asking and answering

a question left unaddressed by the majority opinion. In fact,

we noted that Justice Breyer‘s concurrence in Horn was

particularly persuasive because ―Justice Breyer did not

discuss issues in his concurring opinion that Justice Stevens,

writing on behalf of the four-judge plurality, did not reach.‖

Horn, 376 F.3d at 175. That is not the case here.

The Majority concedes that a concurring ―justice‘s

opinion ‗cannot add to what the majority opinion holds‘ by

‗binding the other four [j]ustices to what they have not said.‘‖

Maj. Typescript at 39 (quoting McKoy v. North Carolina, 494

U.S. 433, 462 n.3 (1990) (Scalia, J., dissenting)). Yet by

holding that Justice Alito‘s concurrence ―controls the

majority opinion in Morse,‖ Maj. Typescript at 36, the

Majority violates this very principle. The majority in Morse

noted that ―this is plainly not a case about political debate,‖

Morse, 551 U.S. at 403, and refused to address what the result

of the case would have been had Frederick‘s banner been

―political.‖ The Majority implies that Justice Alito‘s

concurrence provides a definitive, ―controlling‖ answer to fill

the void left by the Morse majority opinion, but the Supreme

Court has disavowed this approach: ―The Court would be in

an odd predicament if a concurring minority of the Justices

could force the majority to address a point they found it

unnecessary (and did not wish) to address, under compulsion

of [the dissent‘s] new principle that silence implies

agreement.‖ Alexander v. Sandoval, 532 U.S. 275, 285 n.5

5

(2001). Put another way, a majority ―holding is not made

coextensive with the concurrence because [the majority]

opinion does not expressly preclude (is ‗consistent with[]‘ . .

.) the concurrence‘s approach.‖ Id.

Notwithstanding the Majority‘s statement to the

contrary, we have never applied the Marks rule to hold that a

concurrence may co-opt an opinion joined by at least five

Justices. Rather, consistent with Marks, ―we have looked to

the votes of dissenting Justices if they, combined with votes

from plurality or concurring opinions, establish a majority

view on the relevant issue.‖ United States v. Donovan, 661

F.3d 174, 182 (3d Cir. 2011) (emphasis added); see also

Student Pub. Interest Research Grp. of N.J., Inc. v. AT&T

Bell Labs., 842 F.2d 1436, 1451 & n.16 (3d Cir. 1988). In

Donovan, we used Marks to analyze the Supreme Court‘s

―fractured‖ decision in Rapanos v. United States, 547 U.S.

715 (2006), a case in which only three other Justices joined

Justice Scalia‘s plurality opinion and four others dissented.

Donovan, 661 F.3d at 179, 182. Nowhere did we suggest that

Marks would have been applicable had Rapanos featured a

single majority opinion. Likewise, in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir.

1991), rev’d on other grounds, 505 U.S. 833 (1992), we held

that Marks stands for the proposition that ―the controlling

opinion in a splintered decision is that of the Justice or

Justices who concur on the ‗narrowest grounds.‘‖ Casey, 947

F.2d at 693 (emphasis added). We then applied this principle

while interpreting the Supreme Court‘s plurality decisions in

Webster v. Reproductive Health Services, 492 U.S. 490

(1989), and Hodgson v. Minnesota, 497 U.S. 417 (1990). See

Casey, 947 F.3d at 695–96 (noting that in Webster ―[t]he five

Justices in the majority issued three opinions,‖ none of which

6

garnered five votes on the legal issue in dispute, and that

―Hodgson was decided in a similar manner‖). Once again,

we gave no indication that Marks would have applied had

five Justices or more joined the same opinion.

I also find it significant that, in the six years since

Morse was decided, nine of ten appellate courts have cited as

its holding the following standard articulated by Chief Justice

Roberts in his opinion for the Court: ―[A] principal may,

consistent with the First Amendment, restrict student speech

at a school event, when that speech is reasonably viewed as

promoting illegal drug use,‖ Morse, 551 U.S. at 403.1 Not

1

See Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir.

2011) (―[T]he Supreme Court has determined that public

schools may ‗take steps to safeguard those entrusted to their

care from speech that can reasonably be regarded as

encouraging illegal drug use‘ because of the special nature of

the school environment and the dangers posed by student

drug use.‖ (citations omitted)); Hardwick ex rel. Hardwick v.

Heyward, 711 F.3d 426, 435 (4th Cir. 2013) (―[S]chool

officials can regulate student speech that can plausibly be

interpreted as promoting illegal drugs because of ‗the dangers

of illegal drug use.‘‖ (citation omitted)); Defoe ex rel. Defoe

v. Spiva, 625 F.3d 324, 332–33 (6th Cir. 2010) (―As this

Court has already recognized, however, the Morse holding

was a narrow one, determining no more than that a public

school may prohibit student expression at school or at school-

sponsored events during school hours that can be ‗reasonably

viewed as promoting drug use.‘‖ (citation omitted));

Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874,

877 (7th Cir. 2011) (noting that promoting ―the use of illegal

drugs, [is] a form of advocacy in the school setting that can be

7

one of these courts indicated that Justice Alito‘s concurrence

controls, or that his dicta regarding ―political or social

speech‖ altered or circumscribed the Court‘s holding in

Morse. We too have articulated the import of Morse

consistent with these eight appellate courts: ―[I]n Morse, the

Court 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.‘‖ K.A. ex rel. Ayers

v. Pocono Mountain Sch. Dist., 710 F.3d 99, 107 (3d Cir.

prohibited without evidence of disruption‖ (citation omitted));

D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647

F.3d 754, 761 (8th Cir. 2011) (―Chief Justice Roberts

reviewed the Court‘s approach in these prior decisions before

holding ‗that schools may take steps to safeguard those

entrusted to their care from speech that can reasonably be

regarded as encouraging illegal drug use.‘‖ (citation

omitted)); Redding v. Safford Unified Sch. Dist. No. 1, 531

F.3d 1071, 1094 (9th Cir. 2008), rev’d on other grounds, 557

U.S. 364 (2009) (―[S]chools can ‗restrict student expression

that they reasonably regard as promoting illegal drug use.‘‖

(citation omitted)); Corder v. Lewis Palmer Sch. Dist. No. 38,

566 F.3d 1219, 1228 (10th Cir. 2009) (―[A] public school

may prohibit student speech at school or at a school-

sponsored event during school hours that the school

‗reasonably view[s] as promoting illegal drug use.‘‖ (citation

omitted)); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 984

(11th Cir. 2007) (―[T]he special characteristics of the school

environment and the governmental interest in stopping

student drug abuse . . . allow schools to restrict student

expression that they reasonably regard as promoting illegal

drug use.‖ (citation omitted)).

8

2013) (citation omitted).2 This widespread consensus is

further proof that Chief Justice Roberts‘s majority opinion,

not Justice Alito‘s concurrence, is the controlling opinion in

Morse.

Before today, only the Fifth Circuit had held

otherwise. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d

740, 746 n.25 (5th Cir. 2009) (―We have held Justice Alito‘s

concurrence to be the controlling opinion in Morse.‖ (citing

Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th

Cir. 2007)); see also Morgan, 589 F.3d at 745 n.15

(interpreting the holding in Morse to be ―that schools may

regulate speech that a reasonable observer would interpret as

advocating illegal drug use and that could not be interpreted

as commenting on any political or social issue‖ (internal

quotation marks omitted)).3 However, the Fifth Circuit did

2

The Majority cites our opinion in J.S. ex rel. Snyder

v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011), as

evidence that we ―previously‖ had the ―intuition‖ that Justice

Alito‘s concurrence controls the Supreme Court‘s opinion in

Morse. Maj. Typescript at 45 n.17. But in J.S., as in K.A., we

explicitly noted that the Supreme Court ―held that ‗the special

characteristics of the school environment and the

governmental interest in stopping drug abuse allow schools to

restrict student expression that they reasonably regard as

promoting illegal drug use.‘‖ 650 F.3d at 927 (emphasis

added) (quoting Morse, 551 U.S. at 408) (alterations, citation,

and internal quotation marks omitted).

3

The Majority claims that both the Sixth Circuit and

Tenth Circuit agree with the Fifth Circuit that Justice Alito‘s

concurrence is controlling. See Maj. Typescript at 45 n.17

9

not cite Marks or any other ―narrowest grounds‖ case and

provided no justification to support its conclusion that Justice

Alito‘s concurrence is the controlling opinion in Morse. As

the Seventh Circuit has aptly noted:

The plaintiff calls Justice Alito‘s concurrence

the ―controlling‖ opinion in Morse because

Justices Alito and Kennedy were part of a five-

Justice majority, so that their votes were crucial

to the decision. But they joined the majority

opinion, not just the decision, and by doing so

they made it a majority opinion and not merely,

as the plaintiff believes (as does the Fifth

Circuit, Ponce v. Socorro Independent School

(citing Barr v. Lafon, 538 F.3d 554, 564 (6th Cir. 2008), and

Corder, 566 F.3d at 1228). I disagree. In Barr, the Sixth

Circuit recognized Chief Justice Roberts‘s articulation that ―a

public school may prohibit student speech at school or at a

school-sponsored event during school hours that the school

‗reasonably view[s] as promoting illegal drug use‘‖ as the

Court‘s ―narrow holding.‖ 538 F.3d at 564 (citation omitted).

Although the opinion went on to discuss Justice Alito‘s

concurrence, the Sixth Circuit never opined that the

concurrence controls or otherwise modifies what the court

had previously described as Morse‘s ―narrow holding.‖ See

id.; see also Defoe, 625 F.3d at 332–33 & n.5 (describing the

same ―narrow‖ holding in Morse before discussing Justice

Alito‘s concurrence in a footnote). The same can be said for

the Tenth Circuit‘s decision in Corder, which essentially

parrots Barr‘s description of Morse‘s majority opinion and

Justice Alito‘s concurrence. See Corder, 566 F.3d at 1228

(quoting Barr, 538 F.3d at 564).

10

District, 508 F.3d 765, 768 (5th Cir. 2007)), a

plurality opinion. The concurring Justices

wanted to emphasize that in allowing a school

to forbid student speech that encourages the use

of illegal drugs the Court was not giving

schools carte blanche to regulate student

speech. And they were expressing their own

view of the permissible scope of such

regulation.

Nuxoll ex rel. Nuxoll v. Indian Prarie Sch. Dist. # 204, 523

F.3d 668, 673 (7th Cir. 2008) (emphasis added) (citation

omitted). This interpretation of the relationship between

Justice Alito‘s concurrence and the majority opinion in Morse

is the correct one because it is faithful to Marks and its

progeny.

For the reasons stated, I would not read Justice Alito‘s

concurrence as altering or circumscribing a majority opinion

for the Court that he joined in toto. Thus, the Court‘s holding

in Morse remains the familiar articulation that has been

consistently stated, time and again, by this Court and eight

other Courts of Appeals: ―[A] principal may, consistent with

the First Amendment, restrict student speech at a school

event, when that speech is reasonably viewed as promoting

illegal drug use.‖ Morse, 551 U.S. at 403.

B

If Justice Alito‘s concurrence is not the ―controlling‖

opinion in Morse, the Majority has committed legal error by

engrafting his dicta regarding ―social or political‖

commentary as a limitation upon the ability of schools to

regulate speech that runs afoul of Fraser. But even assuming,

11

arguendo, that Justice Alito‘s concurrence alters or

circumscribes the Court‘s opinion in Morse, it is far from

clear that it had anything to say about the realm Fraser carved

out of Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969).

Tinker established the general rule that ―student

expression may not be suppressed unless school officials

reasonably conclude that it will ‗materially and substantially

disrupt the work and discipline of the school.‘‖ Morse, 551

U.S. at 403 (quoting Tinker, 393 U.S. at 513); see also, e.g.,

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir.

2001). Tinker‘s ―substantial disruption‖ test does not apply in

every case, however. As then-Judge Alito wrote when he was

a member of this Court, ―the Supreme Court has carved out a

number of narrow categories of speech that a school may

restrict even without the threat of substantial disruption.‖ Id.

at 212; see also J.S., 650 F.3d at 927 (emphasizing that the

exceptions to Tinker are ―narrow‖). First came Fraser, in

which the Supreme Court held that schools may restrict the

manner in which a student conveys his message by forbidding

and punishing the use of lewd, vulgar, indecent, or plainly

offensive speech. See Fraser, 478 U.S. at 680–86. Then, in

Hazelwood School District v. Kuhlmeier, 484 U.S. 260

(1988), the Court held that administrators may regulate

speech that is school-sponsored or could reasonably be

viewed as the school‘s own speech. Id. at 272–73. Most

recently, in Morse the Court 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, 551 U.S. at 397.

As these cases indicate, ―[s]ince Tinker, every

Supreme Court decision looking at student speech has

12

expanded the kinds of speech schools can regulate.‖ Palmer

ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502,

507 (5th Cir. 2009); cf. Morse, 551 U.S. at 417 (Thomas, J.,

concurring) (observing that ―the Court has since scaled back

Tinker‘s standard, or rather set the standard aside on an ad

hoc basis‖). In derogation of this consistent trend, the

Majority makes us the first United States Court of Appeals to

suggest that Morse has circumscribed Fraser, thereby

limiting the ability of teachers and administrators to regulate

student speech.

In addition to overriding the careful steps taken to

allow schools to regulate student speech since Tinker, the

Majority errs by placing Morse at the center of a case that has

nothing whatsoever to do with illegal drug use. That Morse is

not central to this case is borne out by the way the case was

litigated and adjudicated. The District Court concluded that

only the standards of Tinker and Fraser are implicated, and

neither party ever argued otherwise. See B.H. v. Easton Area

Sch. Dist., 827 F. Supp. 2d 392, 394 (E.D. Pa. 2011) (―The

two Supreme Court cases examining student speech that are

most relevant to this case are Fraser and Tinker.‖). The

School District primarily contends that the ―I ♥ boobies!‖

bracelets are proscribable because they express sexual

innuendo that can reasonably be classified in the middle

school context as lewd, vulgar, and indecent speech.

Plaintiffs rejoin that the word ―boobies‖ is neither inherently

sexual nor vulgar, especially when conspicuously tied to

breast cancer awareness. Until the case reached the en banc

Court, no party or judge had suggested that Morse provided

the governing standard for this dispute. And rightly so,

because this is a Fraser case, not a Morse case, and there are

critical differences between the two.

13

Courts have recognized, time and again, that the three

exceptions to Tinker‘s general rule are independent ―carve-

outs.‖ See, e.g., Saxe, 240 F.3d at 212–14. The Supreme

Court has given no indication—either in Morse or any of its

subsequent decisions—that it has modified the standard, first

articulated in Fraser more than 25 years ago, that governs

how schools are to regulate speech they may reasonably deem

lewd, vulgar, indecent, or plainly offensive. Moreover,

although the appellate courts have had dozens of

opportunities to do so, no court has suggested that Morse

qualified Fraser in any way. Since Morse, we have had

occasion to consider Fraser and have consistently

―interpreted [it] to permit school officials to regulate ‗lewd,

vulgar, indecent, and plainly offensive speech in school.‘‖

J.S., 650 F.3d at 927 (quoting Saxe, 240 F.3d at 213)

(emphasis and internal quotation marks omitted); see also

K.A., 710 F.3d at 107 (―In [Fraser], the Court held that

schools may restrict the manner in which a student conveys

his message by forbidding and punishing the use of lewd,

vulgar, indecent, and plainly offensive speech.‖ (citation

omitted)); Layshock ex rel. Layshock v. Hermitage Sch. Dist.,

650 F.3d 205, 212–13 (3d Cir. 2011) (same).

In fact, the appellate opinions addressing Morse,

Fraser, and Kuhlmeier treat them as independent analytical

constructs that permit schools to regulate certain types of

speech that would otherwise be protected under Tinker. See,

e.g., Hardwick, 711 F.3d at 435 n.11 (―[W]e must continue to

adhere to the Tinker test in cases that do not fall within any

exceptions that the Supreme Court has created until the Court

directs otherwise.‖); Doninger, 642 F.3d at 353–54

(―[B]ecause the t-shirts were not vulgar, could not reasonably

be perceived to bear the School‘s imprimatur, and did not

14

encourage drug use, they could be subject to regulation

different from that permissible for adults in non-school

settings only if they threatened substantial disruption to the

work and discipline of the School.‖ (citations omitted)). It is

especially notable that even the Fifth Circuit, which

mistakenly held that Justice Alito‘s concurrence in Morse is

―controlling,‖ continues to treat the Tinker carve-outs as

independent exceptions rather than overlapping categories of

proscribable speech. See Morgan, 589 F.3d at 745 n.15 (5th

Cir. 2009) (characterizing Fraser as ―holding schools may

prohibit lewd, vulgar, obscene or plainly offensive student

speech‖ and, in the same string citation, separately

characterizing Morse as ―holding that schools may regulate

speech ‗that a reasonable observer would interpret as

advocating illegal drug use‘ and that could not be ‗interpreted

as commenting on any political or social issue‘‖ (citations

omitted)). The Majority‘s own analysis demonstrates that

threshold questions in a school speech case are whether the

speech at issue is governed by one of the three Tinker carve-

outs and, if not, whether the school acted properly under

Tinker. See Maj. Typescript at 63–64.

In addition, we have emphasized that the carve-outs

touch on ―several narrow categories of speech that a school

may restrict even without the threat of substantial disruption.‖

K.A., 710 F.3d at 107 (emphasis added) (internal quotation

marks omitted). This does not mean, as the Majority

suggests, that the carve-outs narrow one another. See Maj.

Typescript at 45 n.17 (citing J.S., 650 F.3d at 927). Rather, it

is simply a recognition that they are narrow within their

separate spheres. Indeed, courts have been especially careful

to underscore the narrowness of the Court‘s holding in Morse.

See, e.g., Defoe, 625 F.3d at 332–33 (―[T]he Morse holding

15

was a narrow one, determining no more than that a public

school may prohibit student expression at school or at school-

sponsored events during school hours that can be ‗reasonably

viewed as promoting drug use.‘‖ (emphasis added) (citation

omitted)); Barr, 538 F.3d at 564 (same); B.W.A. v.

Farmington R-7 Sch. Dist., 554 F.3d 734, 741 (8th Cir. 2009)

(same).

In J.S., we too recognized the ―narrowness of the

Court‘s holding‖ in Morse. J.S., 650 F.3d at 927.4 There, we

declared that Morse did not apply to a school‘s punishment of

a student for creating a MySpace profile using graphic

language and imagery to disparage her teacher, see J.S., 650

F.3d at 932 n.10 (―Indisputably, neither Kuhlmeier nor Morse

governs this case.‖). Instead, we indicated that ―the only way

for the punishment to pass constitutional muster is if . . . J.S.‘s

speech can be prohibited under the Fraser exception to

Tinker.‖ Id. at 931–32. If the proper standard under Fraser is

the Majority‘s formulation of whether a student‘s lewd

speech may ―plausibly be interpreted as commenting on a

social or political issue,‖ surely we would have considered

4

The Majority believes that this clause serves as an

indicator that Justice Alito‘s concurrence narrowed the

holding in Morse and, in turn, narrowed the speech that

schools can proscribe under Fraser. See Maj. Typescript at

45 n.17. Contrary to the Majority‘s implication, in J.S. we

neither addressed Justice Alito‘s discussion of student speech

that touches on matters plausibly related to a social or

political issue nor indicated a belief that his concurrence

somehow modified the Morse Court‘s majority opinion,

which we quoted verbatim as the Court‘s holding. See J.S.,

650 F.3d at 927.

16

whether J.S.‘s online profile touched on any such issue.

Instead of doing so, we applied the Fraser test while

disavowing the relevance of Morse.

The fact that courts have maintained analytical

separation among the different Tinker carve-outs makes sense

because the Supreme Court created each one for a unique

purpose. In K.A. we addressed these ―vital interests that

enable school officials to exercise control over student speech

even in the absence of a substantial disruption.‖ K.A., 710

F.3d at 107. The vital interest at issue in Morse that ―allow[s]

schools to restrict student expression that they reasonably

regard as promoting illegal drug use‖ is ―the special

characteristics of the school environment, and the

governmental interest in stopping student drug abuse.‖ Id.

(quoting Morse, 551 U.S. at 408). Fraser allowed schools to

punish ―lewd, indecent, or offensive speech,‖ 478 U.S. at 683,

to further ―society‘s . . . interest in teaching students the

boundaries of socially appropriate behavior,‖ K.A., 710 F.3d

at 107 (quoting Fraser, 478 U.S. at 681). And in Kuhlmeier,

the interest that ―entitle[s] [educators] to exercise greater

control over [school-sponsored publications]‖ is ―to assure

that participants learn whatever lessons the activity is

designed to teach, that readers or listeners are not exposed to

material that may be inappropriate for their level of maturity,

and that the views of the individual speaker are not

erroneously attributed to the school.‖ K.A., 710 F.3d at 107

(quoting Kuhlmeier, 484 U.S. at 271). The Court‘s

willingness to curtail the First Amendment rights of students

to enable schools to achieve these important goals vindicates

the principle that ―the rights of students ‗must be applied in

light of the special characteristics of the school

environment.‘‖ Morse, 551 U.S. at 397 (quoting Kuhlmeier,

17

484 U.S. at 266). Because each case was intended to address

a separate concern, I disagree with the Majority that language

qualifying one type of carve-out applies equally to the others.

In sum, Morse‘s ―narrow‖ holding does not apply

unless a school has regulated student speech that it viewed as

advocating illegal drug use. Notwithstanding its critical

reliance on Morse, at one point the Majority seems to agree

that Morse does not apply to this case when it states that ―no

one could reasonably interpret the bracelets as advocating

illegal drug use.‖ Maj. Typescript at 64. The Majority can‘t

have it both ways. The decision to engraft Justice Alito‘s

Morse concurrence onto Fraser erodes the analytical

distinction between the two lines of cases and turns this

appeal into some sort of Fraser/Morse hybrid. ―The law

governing restrictions on student speech can be difficult and

confusing, even for lawyers, law professors, and judges. The

relevant Supreme Court cases can be hard to reconcile, and

courts often struggle to determine which standard applies in

any particular case.‖ Doninger, 642 F.3d at 353. By using

Morse to modify the distinct carve-out established in Fraser,

the Majority has muddied the waters and further encumbered

the ability of educators to run their schools.

The Majority attempts to make more palatable its

decision to engraft Morse‘s supposed prohibition of ―any

restriction of speech that can plausibly be interpreted as

commenting on any political or social issue‖ onto Fraser.

For instance, it claims that ―the [Supreme] Court did not

believe that Fraser‘s speech could plausibly be interpreted as

political or social commentary.‖ Maj. Typescript at 27. By

claiming that such an interpretation of Matthew Fraser‘s

―speech nominating a fellow student for student elective

office,‖ Fraser, 478 U.S. at 677, is wholly ―implausible,‖ the

18

Majority demonstrates the difficulties that arise when it

blends together the disparate Tinker carve-outs.

As the Majority rightly notes, the Fraser Court opined

that there was a ―marked distinction between the political

‗message‘ of the armbands in Tinker and the sexual content of

Fraser‘s speech.‖ Maj. Typescript at 28–29 (quoting Fraser,

478 U.S. at 680). That does not mean, however, that it was

implausible to conclude that Fraser‘s speech was political. If

it were truly implausible to ―interpret[] [Fraser‘s speech] as

commenting on any political or social issue,‖ one must

wonder why the United States Court of Appeals for the Ninth

Circuit characterized Fraser‘s speech as ―student political

speech-making‖ and a ―campaign speech[].‖ Fraser v. Bethel

Sch. Dist. No. 403, 755 F.2d 1356, 1363 (9th Cir. 1985),

rev’d, 478 U.S. 675 (1986); id. at 1368 (Wright, J.,

dissenting). The three appellate judges who heard Fraser‘s

case were deemed by the Supreme Court to have erred when

they likened his speech to Tinker‘s armband, but that does not

mean that it was ―implausible‖ for those three judges to view

Fraser‘s speech as political. It was, after all, a campaign

speech.

A brief hypothetical further demonstrates the problems

posed by the Majority‘s plausibility-based articulation of the

Fraser carve-out. Suppose a student makes a speech at a

school assembly. Like Matthew Fraser‘s speech, the content

is about supporting a candidate for office, but the sexual

references are muted enough such that the Majority would

deem them ―ambiguously lewd‖ instead of ―plainly lewd.‖ If

the student‘s speech is about a classmate running for school

office, the Majority would say that the school may punish the

speaker. But if an identical speech is given and the

classmate‘s name is replaced with the name of a candidate for

19

president, mayor, or even school board, the Majority would

conclude that the First Amendment insulates the student‘s

speech. In my view, the two speeches are indistinguishable

under Fraser.

In sum, the Majority‘s approach vindicates any speech

cloaked in a political or social message even if a reasonable

observer could deem it lewd, vulgar, indecent, or plainly

offensive. In both cases, the inappropriate language is

identical, but the speech is constitutionally protected as long

as it meets the Majority‘s cramped definition of ―politics‖ or

its as-yet-undefined notion of what constitutes ―social

commentary.‖ Fraser repudiated this very idea. ―The First

Amendment guarantees wide freedom in matters of adult

public discourse . . . . It does not follow, however, that

simply because the use of an offensive form of expression

may not be prohibited to adults making what the speaker

considers a political point, the same latitude must be

permitted to children in a public school.‖ Fraser, 478 U.S. at

682 (emphasis added).

II

As noted, the Majority holds that ―Fraser . . . permits a

school to categorically restrict ambiguous speech that a

reasonable observer could interpret as having a lewd, vulgar,

or profane meaning,‖ but only ―so long as it could not also

plausibly be interpreted as commenting on a social or political

issue.‖ Maj. Typescript at 61. It is important to emphasize

here that, despite my disagreement with the second part of the

Majority‘s formulation, I agree fully with its understanding of

the objective-reasonableness inquiry compelled under Fraser.

See Maj. Typescript 32–35 (discussing why ―courts should

defer to a school‘s decisions to restrict what a reasonable

20

observer would interpret as lewd, vulgar, profane, or

offensive‖).5

5

Though I believe an objective-reasonableness test is

the correct interpretation of Fraser, its level of generality

leaves something to be desired, particularly when one

considers that the lower courts will look to our decision for

guidance. The Majority states that ―[i]t remains the job of

judges . . . to determine whether a reasonable observer could

interpret student speech as lewd, profane, vulgar, or

offensive.‖ Maj. Typescript at 33–34. But who is this

―reasonable observer‖? The Majority gives us clues: he

―would not adopt an acontextual interpretation‖ and would

consider ―the plausibility of the school‘s interpretation in

light of competing meanings; the context, content, and form

of the speech; and the age and maturity of the students.‖ Maj.

Typescript at 34. I would add several more considerations.

Most importantly, evolving societal norms counsel that what

is ―objectively‖ considered ―lewd, profane, vulgar, or

offensive‖ one day may not be so the next. See, e.g., Fraser,

478 U.S. at 691 (Stevens, J., dissenting) (―‗Frankly, my dear,

I don‘t give a damn.‘ When I was a high school student, the

use of those words in a public forum shocked the Nation.

Today Clark Gable‘s four-letter expletive is less offensive

than it was then.‖). Furthermore, given the diversity of

opinions and perspectives across our country, the type of

speech that may reasonably fall into one of the proscribable

categories would vary widely from one community to the

next. These considerations highlight the importance of

ensuring that ―the determination of what manner of speech in

the classroom or in school assembly is inappropriate properly

rests with the school board.‖ Fraser, 478 U.S. at 683.

21

The Majority did not find that the school‘s

interpretation of the bracelets‘ message as lewd was

objectively unreasonable. See Maj. Typescript at 63 n.22

(―[W]e need not determine whether a reasonable observer

could interpret the bracelets‘ slogan as lewd.‖). Thus, had the

Majority not engrafted Justice Alito‘s concurrence in Morse

onto the Fraser standard, my colleagues might agree that the

school did not violate the First Amendment when it

proscribed the bracelet. Because the Majority chose not to

analyze whether the school was reasonable in determining

that the bracelet could be proscribed under Fraser, however, I

will briefly discuss why that is so.

In this close case, the ―I ♥ boobies! (KEEP A

BREAST)‖ bracelets would seem to fall into a gray area

between speech that is plainly lewd and merely indecorous.

Because I think it objectively reasonable to interpret the

bracelets, in the middle school context, as inappropriate

sexual innuendo and double entendre, I would reverse the

judgment of the District Court and vacate the preliminary

injunction.

The District Court correctly ascertained the standard of

review to apply in a case that arises under Fraser, but

proceeded to misapply that standard. First, by emphasizing

whether Plaintiffs intended a vulgar or sexual meaning in

their ―I ♥ boobies!‖ bracelets and determining that a non-

sexual, breast-cancer-awareness interpretation of the bracelets

was reasonable, the Court inverted the proper question.

Instead of asking whether it was reasonable to view the

bracelets as an innocuous expression of breast cancer

awareness, the District Court should have asked whether the

school officials‘ interpretation of the bracelets—i.e., as

expressing sexual attraction to breasts—was reasonable. So

22

long as the School District‘s interpretation was objectively

reasonable, the ban did not contravene the First Amendment

or our school-speech jurisprudence.

Second, in its substantive conclusion that ―I ♥

boobies!‖ cannot reasonably be regarded as lewd or vulgar,

the District Court highlighted the bracelets‘ social value while

disregarding their likely meaning to immature middle-

schoolers.6 As the School District argues, the fact that

6

In fact, we have questioned the applicability of the

Supreme Court‘s student speech jurisprudence in the

elementary and middle school settings:

[A]t a certain point, a school child is so young

that it might reasonably be presumed the First

Amendment does not protect the kind of speech

at issue here. Where that point falls is subject

to reasonable debate.

In any event, if third graders enjoy rights under

Tinker, those rights will necessarily be very

limited. Elementary school officials will

undoubtedly be able to regulate much—perhaps

most—of the speech that is protected in higher

grades. When officials have a legitimate

educational reason—whether grounded on the

need to preserve order, to facilitate learning or

social development, or to protect the interests of

other students—they may ordinarily regulate

public elementary school children‘s speech.

23

Plaintiffs‘ laudable awareness message could be discerned

from the bracelets does not render the School District‘s ban

unconstitutional. ―I ♥ boobies!‖ not only expresses support

for those afflicted with breast cancer, but also conveys a

sexual attraction to the female breast.

It is true that certain facts indicate that a sexual

interpretation of the ―I ♥ boobies!‖ bracelets may be at the

outer edge of how a reasonable observer would interpret

speech. Most obviously, the bracelets always modify the ―I ♥

boobies!‖ phrase with ―(KEEP A BREAST)‖ or other breast-

cancer-awareness messages. ―When one reads the entire

Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412,

417–18 (3d Cir. 2003); see also Walz ex rel. Walz v. Egg

Harbor Twp. Bd. of Educ., 342 F.3d 271, 276 (3d Cir. 2003)

(noting that ―the age of the students bears an important

inverse relationship to the degree and kind of control a school

may exercise: as a general matter, the younger the students,

the more control a school may exercise‖). Other appellate

courts share our misgivings, noting that ―the younger the

children, the more latitude the school authorities have in

limiting expression.‖ Zamecnik, 636 F.3d at 876 (citing

Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d

1530, 1538–39 (7th Cir. 1996)); see also Nuxoll, 523 F.3d at

673 (when a school regulates the speech of children that are

―very young . . . the school has a pretty free hand‖); Morgan,

659 F.3d at 386 (―[I]n public schools, the speech appropriate

for eighteen-year-old high school students is not necessarily

acceptable for seven-year-old grammar school students.

Indeed, common sense dictates that a 7-year-old is not a 13-

year-old, and neither is an adult.‖ (alterations, citations, and

internal quotation marks omitted)).

24

phrase, it is clearly a message designed to promote breast

cancer awareness.‖ K.J. v. Sauk Prairie Sch. Dist., No. 11-

cv-622, slip op. at 14 (W.D. Wis. Feb. 6, 2012).

Additionally, school administrators did not immediately

recognize the bracelets as vulgar or lewd; students had been

wearing the bracelets for two months before they were

banned, and teachers had to request guidance on whether and

how to deal with the bracelets. Moreover, the school itself

was compelled to use the word ―boobies‖ over the public

address system and school television station in order to

describe the proscribed bracelets, which suggests that the

word alone is not patently offensive.

Notwithstanding the facts supporting Plaintiffs‘ case, I

conclude that ―I ♥ boobies!‖ can reasonably be interpreted as

inappropriate sexual double entendre. In the middle school

context, the phrase can mean both ―I support breast-cancer-

awareness measures‖ and ―I am attracted to female breasts.‖

Many twelve- and thirteen-year-old children are susceptible

to juvenile sexualization of messages that would be

innocuous to a reasonable adult. Indeed, at least one bracelet-

wearer acknowledged that ―immature‖ boys might read a

lewd meaning into the bracelets and conceded that she

understood why the school might want to ban the bracelets,

B.H., 827 F. Supp. 2d at 399, and other students parroted the

phrase on the bracelets while conveying sexual attraction to

breasts. Another school administrator has concluded that the

bracelets at issue here ―elicit attention by sexualizing the

cause of breast cancer awareness.‖ Sauk Prairie, No. 11-cv-

622, at 4. And as Judge Crabb, the only other federal judge to

consider these bracelets, put it in Sauk Prairie, ―hints of

vulgarity and sexuality‖ in the bracelets ―attract attention and

provoke conversation, a ploy that is effective for [KABF‘s]

25

target audience of immature middle [school] students.‖ Id. at

15. Finally, as the Gender Equality amicus brief points out,

breasts are ubiquitously sexualized in American culture.

The Easton Area Middle School principals‘

willingness to say ―boobies‖ to the entire school audience

does not imply that the word does not have a sexual meaning;

it merely suggests that ―boobies‖ is not plainly lewd.

Moreover, although KABF‘s decision not to market its

products through porn stars and at truck stops is laudable, the

interest such organizations have shown in the bracelets is

further evidence that the bracelets are read by many to

contain a sexual meaning. And the ―I ♥ boobies!‖ bracelets‘

breast cancer message is not so obvious or overwhelming as

to eliminate the double entendre. For one thing, the bracelets

come in many colors other than the shade of pink widely

associated with the fight against breast cancer.

Additionally, although Plaintiffs and their amici argue

that the casual language of the ―I ♥ boobies!‖ bracelets is

intended to make breast cancer issues more accessible and

less stigmatized for girls and young women, that purpose

does not undermine the plausibility of a sexual interpretation

of the bracelets. Nor does the fact that these Plaintiffs‘

mothers were happy not only to purchase the bracelets for

their teenage daughters but also to wear them render the

bracelets immune from school regulation. The mothers‘

intent that the bracelets convey a breast-cancer-awareness

message, like Plaintiffs‘ own subjective motive, is irrelevant

to interpreting the meaning of the speech.

Likewise, the School District administrators‘

subjective beliefs, expressed at the time of the ban and later

during this litigation, do not affect my determination of

26

whether it is objectively reasonable to infer a sexualized

meaning from the bracelets. Their failure to use the words

―lewd,‖ ―vulgar,‖ ―indecent,‖ or ―plainly offensive‖ is not

fatal to their claim of regulatory authority. Similarly, some

principals‘ inconsistent testimony regarding what other

breast-cancer-related phrases they might censor does not

make the phrase at issue here more or less vulgar. Therefore,

it is not probative that administrators intermittently indicated

that they thought the word ―breast‖ by itself has an

impermissible sexual connotation.

Plaintiffs rely on the initial statements by teachers at

the middle school that the word ―breast‖ alone in any context

and the phrases ―breast cancer awareness‖ and ―keep-a-

breast.org‖ could also be banned to argue that the School

District has left them no other means to convey their breast-

cancer-awareness message. But those words were not

banned—indeed, students are permitted to wear KABF‘s

―check y♥urself!! (KEEP A BREAST)‖ bracelets—and the

administrators changed their position prior to the evidentiary

hearing, opining that such phrases would not be inappropriate

at school. Also significant is the fact that the Easton Area

Middle School has not stifled the message of breast cancer

awareness; in the course of a robust breast cancer awareness

campaign it merely imposed a permissible restriction on the

way in which that message may be expressed. See Saxe, 240

F.3d at 213 (―Fraser speaks to the form and manner of

student speech, not its substance. It addresses the mode of

expression, not its content or viewpoint.‖ (citation omitted)).

Nor is Plaintiffs‘ position saved by the fact that the ―I

♥ boobies!‖ phrase was ―chosen to enhance the effectiveness

of the communication to the target audience.‖ B.H., 827 F.

Supp. 2d at 406. The District Court‘s focus on the strategic

27

purpose of the words and format used in the bracelets was

misguided. If indecency were permitted in schools merely

because it was intended to advance some laudable goal,

Matthew Fraser‘s speech would have been constitutionally

protected insofar as he intended to win the attention of his

classmates while advocating the election of his friend.

Finally, if we were to hold that the breast cancer

message here makes any sexual reading of the bracelets

unreasonable, schools would be obliged to permit more

egregiously sexual advocacy messages. As Ms. DiVietro

acknowledged, ―other bodily parts in the human anatomy . . .

can get cancer and . . . other types of slang terms‖ would have

to be condoned. App. 275. DiVietro raised the specter of an

―I ♥ Balls‖ slogan to support testicular cancer awareness. Id.

at 275–76. These examples are not speculative. The

Testicular Cancer Awareness Project sells ―feelmyballs‖

bracelets to encourage male self-examinations and general

awareness. See Testicular Cancer Awareness Project,

http://www.feelmyballs.org/shop/front.php (last visited June

3, 2013). If middle school students have a constitutional right

to wear ―I ♥ boobies!‖ bracelets, it would be difficult to

articulate a limiting principle that would disallow these other

catchy phrases, so long as they were aimed at some socially

beneficial objective.

Simply stated, the District Court correctly articulated

the proper standard of review to be applied in cases that

implicate Fraser (such as this one), but it strayed from that

standard when evaluating the reasonableness of Plaintiffs‘

intended meaning. For that reason, and because the School

District‘s reading of ―I ♥ boobies!‖ as inappropriate sexual

double entendre was a reasonable interpretation in the middle

school context, I would hold that Plaintiffs cannot

28

demonstrate a likelihood of success on the merits of their

claim. Accordingly, the District Court abused its discretion in

granting a preliminary injunction.

* * *

As this case demonstrates, running a school is more

complicated now than ever before. Administrators and

teachers are not only obliged to teach core subjects, but also

find themselves mired in a variety of socio-political causes

during school time. And they do so in an era when they no

longer possess plenary control of their charges as they did

when they acted in loco parentis. See, e.g., Morse, 551 U.S.

at 413–16 (Thomas, J., concurring). The decisions school

administrators must make regarding the deportment of their

students—what they say, what they wear, or what they do—

require common sense and good judgment. Many of those

decisions will involve matters about which reasonable people

can disagree. In the close cases, such as this one, there is

virtue in deferring to the reasonable judgments of those

responsible for educating our nation‘s youth. With respect, I

dissent.

29

GREENAWAY, JR., Circuit Judge, dissenting, with whom

CHAGARES, JORDAN, HARDIMAN and GREENBERG,

join.

My colleagues have determined today that “I ♥

boobies” is an ambiguous phrase that may connote an

attraction to female breasts, but which falls under the

protection of the First Amendment in the middle school

context because it may plausibly be interpreted as

commenting on a political or social issue. Reasonable minds

may come to varying conclusions on this test, but one thing is

not open to debate: a school district faced with the same

dilemma in the coming weeks, months, or years is given no

greater guidance regarding its ability to determine whether a

particular message may be proscribed than before the

Majority opinion issued.

The Majority lauds the intent of the two middle

schoolers responsible for introducing “I ♥ boobies! (KEEP A

BREAST)” bracelets into their school, which encouraged

serious discussion regarding a medical issue of increasing

social import. Appellees‟ actions may or may not reflect an

admirable maturity, but the intent of Appellees is not at issue.

In many cases, when the First Amendment is implicated, the

intent of the speakers will be admirable or at worst benign.

The Majority concludes that, as long as the ambiguous speech

may be interpreted by a reasonable person as plausibly related

to a political or social issue, it is protected. Despite its

express disavowal of intent as a consideration, the Majority

inadvertently re-injects the students‟ intent into the fray by

mandating an analysis of whether a political or social issue is

addressed by the speech. This is improper but it is not my

sole criticism.

1

The Majority‟s test leaves school districts essentially

powerless to exercise any discretion and extends the First

Amendment‟s protection to a breadth that knows no bounds.

As such, how will similarly-situated school districts apply this

amorphous test going forward? The Majority‟s test has two

obvious flaws. First, what words or phrases fall outside of the

ambiguous designation other than the “seven dirty words”?

Second, how does a school district ever assess the weight or

validity of political or social commentary? The absence of

guidance on both of these questions leaves school districts to

scratch their heads.

Practical problems with the Majority‟s test abound.

Where and how do school districts line-draw regarding the

nouns used to describe the subject matter of the particular

awareness campaign? The Majority has established that at

opposite ends of the spectrum are “boobies,” on the one hand,

and “tits,” one of the “seven dirty words,” on the other hand.

What lies between those two extremes and how a school

district is

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