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
`_______________
`
`
`
`
`
`
`
`
`
`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)
`
`
`[ARGUED]
`
`Counsel for Appellant
`
`Keely J. Collins
`John E. Freund, III
`Jeffrey T. Tucker
`King, Spry, Herman, Freund & Faul
`One West Broad Street, Suite 700
`Bethlehem, PA 18018
`
`
`
`Seth F. Kreimer
`University of Pennsylvania School of Law
`3400 Chestnut Street
`Philadelphia, PA 19104
`
`[ARGUED]
`Mary Catherine Roper
`American Civil Liberties Union of Pennsylvania
`P.O. Box 40008
`Philadelphia, PA 19106
`
`Molly M. Tack-Hooper
`Berger & Montague
`
`
`
`2
`
`
`
`Counsel for Appellees
`
`1622 Locust Street
`Philadelphia, PA 19103
`
`Witold J. Walczak
`American Civil Liberties Union
`313 Atwood Street
`Pittsburgh, PA 15213
`
`
`
`Sean A. Fields
`Pennsylvania School Boards Association
`400 Bent Creek Boulevard
`P.O. Box 2042
`Mechanicsburg, PA 17055
`
`
`
`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
`
`Counsel for Amicus Appellant
`
`
`
`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
`the eighth-grade assistant principal, Amy
`asked
`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.
`
`the District Court’s preliminary
`Although
`
`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
`
`
`
`irreparably
`the movant will be
`whether
`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
`see also Eugene Volokh, The First
`educator);
`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,
`(describing Ginsberg as
`2735
`(2011)
`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 (
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