Is an “I ♥ boobies (KEEP A BREAST)” bracelet expressing a lewd or disruptive sentiment and thus properly banned by a school?  Or is the bracelet,  promoted by “The Keep a Breast Foundation” working against breast cancer, a political statement that was not causing disruption, and thus not constitutionally prohibitable by a public school?

In essence that was the choice faced by the entire Third Circuit Court of Appeals in B.H. v. Easton Area School District.  In its 9-5 opinion, a majority found in favor of the First Amendment rights of the students, ruling that the school could not ban the “I ♥ boobies (KEEP A BREAST)” bracelets .  The bracelets, the court ruled, may have “ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning,” but because a reasonable observer could also “plausibly interpret as commenting on a social or political issue,” the school did not have the power to ban them.   Further, the majority of the judges found that there was nothing disruptive about the bracelets.

The school argued that its authority would be diminished if it could not ban the bracelets and expressed its worries that there was a slippery slope of school attire that it needed to address.  The court found this argument unconvincing, noting that the slippery slope argument also worked in the other direction:

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 message comments on a social or political issue, schools could eliminate all student speech touching on sex or merely having the potential to offend.

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

The dissenting judges urged that schools needed more authority to discipline student expression.   Additionally, they argued that the majority’s opinion – – – which is over 60 pages – – – provided insufficient guidance to school authorities.  Yet perhaps the message of the court is clear: school authorities wishing to curtail students’ expressive attire do so at their own risk.

 I’ve also commented on this case on the Constitutional Law Professors Blog here.

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Bei Bei Shuai’s suicide attempt was unsuccessful, and so was her pregnancy.   She now faces murder charges.  After ingesting rat poison trying to end her own life, she was hospitalized, and a Caesarian later performed on the 33 week old fetus.  The baby died in the hospital within a few days.  Given these tragic facts and Indiana’s criminal prosecution, the case has attracted widespread attention and advocacy on behalf of Bei Bei Shuai.

With trial imminent, the judge is reportedly taking steps to maintain courtroom decorum, including stating:

The wearing of pins, buttons, signs, clothing, and similar materials in the courtroom which express support for or against either party in this case is prohibited.

But doesn’t the public have a First Amendment right to expression in a public trial?

Maybe not.

The United States Supreme Court obliquely confronted the issue in 2006 in Carey v. Musladin.  However, in Musladin, the convicted defendant argued that spectators wearing buttons with photos of the victim denied him a fair trial.  The Court’s opinion was decisively procedural, centering on habeas corpus standards of relief.   While the opinion was unanimous, Justice Souter’s concurring opinion contended that trial judges had affirmative obligations to ensure a fair trial, including regulating the attire of spectators.  Souter raised the possibility of the spectators’ First Amendment right to wear buttons, although he stated he did not find such an interest “intuitively strong.”

In the context of support for a victim, the defendant’s constitutional rights to a fair trial should trump.   As I discuss in chapter 5 of Dressing Constitutionally,  a trial judge in a New York homicide trial banned the wearing of “obtrusive corsages of red and black ribbons of approximately five to six inches in length” in People v. Pennisi.   Applying the local courtroom decorum rules prohibiting disruptive conduct, the trial judge used his discretionary power to prohibit all expressive or symbolic clothing and accessories, including armbands, buttons, and flowers, as “disruptive of a courtroom environment, which environment must be scrupulously dedicated to the appearance as well as the reality of fairness and equal.”  The judge criticized his own past practice in a non-jury trial permitting thirty-five spectators wearing bright yellow tee shirts bearing the blue legend “Justice for Jimmy,” the victim.   Other cases allowing the banning of courtroom spectator attire include banning anti-rape buttons, MAAD (Mothers Against Drunk Driving) buttons, and spectators wearing prison guard uniforms in a prosecution for murder of a prison guard.

While the vast majority of spectator attire seems to favor the victim and thus possibly prejudice the defendant’s right to a fair trial, the high profile ‘Central Park Jogger’ criminal prosecution also involved a spectator button ban.  The  trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’”

Of course, as it turned out, the button was correct; the Central Park 5, including Antron McCray, were indeed, innocent.

Federal District Judge for the District of Columbia, Amy Berman Jackson, has granted summary judgment for the government in her opinion in Scott v. United States in which Scott had alleged that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message “Occupy Everywhere” in the Supreme Court building.

Scott was arrested in January 2012, discussion here; video below:

Since then the federal statute prohibiting certain displays (including words) has been held unconstitutional by a different DC Federal District Judge, at least as to the plaza, and the Supreme Court quickly amended its regulation.

Scott sought damages and expungement of his record, alleging false arrest and imprisonment.  Judge Jackson rejected this claim finding that there was probable cause to arrest Scott, and even if there was not, the officers had a reasonable good faith belief that there was probable cause.  Jackson concludes that Scott’s jacket “fell squarely” within the plain language of the “display clause” of 40 USC §6135:

he was displaying a device (his jacket) in the building which had been adapted to bring public attention to the “Occupy” movement.  See Kinane v. United States, 12 A.3d 23, 25–26 (D.C. 2011) (affirming the conviction of protestors for violating the display clause of section 6135 where the protestors entered the Court with shirts that read, “Shut Down Guantanamo”); Potts v. United States, 919 A.2d 1127, 1130 (D.C. 2007) (holding that an article of clothing can be a “device” within the meaning of section 6135). Since Scott was violating the display clause, he had no authority to remain in the Supreme Court building after the Supreme Court Police told him to cover the display or leave. Therefore, Scott’s violation of section 6135 provided the “additional specific factor” that the Supreme Court Police needed to establish probable cause to arrest him for unlawful entry.

In Akron, Iowa, a man with a profane tattoo – – – the published image makes it difficult to determine the precise language – – – has been reportedly excluded from the municipal pool unless he covers it.

He claims a First Amendment right to display his tattoo, a claim that  has firm First Amendment grounding.   In Cohen v. California, decided by the United States Supreme Court in 1971, the Court upheld the right of a person to wear a jacket bearing the phrase “Fuck the Draft.”  Cohen was charged with the California crime of tumultuous and offensive conduct causing a breach of the peace, but the Court found that “one particular scurrilous epithet” cannot be excised from public discourse under the First Amendment.  The Court opined that  “one man’s vulgarity is another’s lyric,” and added that “it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

The one distinction is that the Akron, Iowa action occurs in a specific place- – – a public pool- – – rather than the more traditional public forum of sidewalks and streets.  The Court in Cohen specifically noted that although Cohen was in a courthouse, the law under which he was charged was a general criminal provision.  And indeed, the Supreme Court itself polices its own building and grounds with regard to expression, profane and otherwise.   

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The Columbian of Clark County, WA, provides an overview of the county’s prison dress code. Inmates receive color-coded uniforms, including:

• Orange for “violent or unruly” behavior;
• Blue for a “low threat,” misdemeanor, or nonviolent felony charge;
• Green for “suicide” watch and for those charged with murder.
  

The color-coded uniforms are meant to provide “security, order, and frugality.” They also, of course, provide an easy visual shorthand for guards and other inmates to make quick judgments about “their character, how they’re behaving and what their charge is,” as the former prison chief explains. 

The article makes the observation that these prison uniforms were introduced to reflect the rehabilitation goal of criminal law, and to remove the “stigma of incarceration” associated with the old black-and-white striped uniform.

Skeptics may recall the recent practice of Sheriff Joe Arpaio of Maricopa County, AZ, who required some prisoners to wear pink underwear as a form of punishment, discussed along with the constitutional issues around prison dress here.

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