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Tuesday, August 20, 2013

Ind. Courts - "Pa. boobies bracelet case may influence FWCS suit", and a personal comment

Rebecca S. Green of the Fort Wayne Journal Gazette has this story today. Some quotes:

A federal judge evaluating a local free speech case will also consider a recent appeals court case from Pennsylvania in making his decision.

The case of “J.A. v. Fort Wayne Community Schools” awaits U.S. District Judge Joseph S. VanBokkelen’s decision after a June hearing. The unnamed girl, then a sophomore at an unnamed FWCS high school, sued the district over an “I (heart) boobies” bracelet in 2012.

Filed by the ACLU on behalf of the girl, the lawsuit claims the district violated her First Amendment rights to free speech when it took the bracelet away.

School officials took the bracelet from the girl but later gave it back to her and told her she could no longer wear it to school.

ACLU attorneys argued the bracelet was neither disruptive to the school environment, nor was it lewd, vulgar, obscene or offensive – all factors that give schools the right to censor certain types of speech.

They asked a judge to prevent the school from banning the bracelets in an earlier motion for an injunction.

But FWCS attorneys argued the girl admitted the phrase could be viewed as lewd or offensive, which demonstrates the school did not violate her First Amendment rights.

They also argued that the age of the students is less important when schools are “regulating sexually charged speech,” according to court documents.

Earlier this month, the U.S. 3rd Circuit Court of Appeals ruled in a split decision in a similar case that the bracelets were constitutionally protected free speech because they are not “plainly lewd” and commented on social issues, specifically breast cancer awareness.

The higher court ruled the school couldn’t ban the bracelets.

ACLU attorneys filed a request last week to have VanBokkelen consider the 3rd Circuit ruling. On Monday, the judge granted their request, according to court documents.

Indiana ACLU legal director Ken Falk said the plaintiff still waits the decision on the injunction.

ILB comment: The ILB in the past has avoided posting the "I (heart) boobies" cases because they make me cringe, as I also noted in this Nov. 21, 2010 post headed "'I (Heart) Boobies' and other inane efforts to put a shiny face on breast cancer."

Posted by Marcia Oddi on August 20, 2013 09:01 AM
Posted to Indiana Courts