the eastern area school district i'd like to reserve two minutes of my time for rebuttal the grants the court your honors we have here today it is not a case that should be dismissed as simply a school district's overreaction to a cute or silly phrase rather district court's treatment of the constitutional issues raised in this case we believe threatens to open the school gates to a flood of cause based marketing energized by club or clever sexual double entendre that pushes the limits of propriety in public schools and poses a risk of distraction and disruption i think it's important to keep in mind that this case involves the  enforcement of a dress code that was in place a dress code that prohibited the wearing of apparel or accessories that contained sexual double entendre and that this was in a middle school kids involved here with the seventh grade in eighth grade in the neighborhood of twelve twelve to thirteen years old it hardly needs to be stated here on to this court as and many courts have recognized again and again that federal courts should exercise restraints restraint rather when considering issues within the purview that that contained a inappropriate sexual innuendo and also as well argue a little bit later on we believe that she was reasonable in her belief that the wearing of these provocative phrases could create that distraction and disruption in the in the public school setting hundred very under frazier that has to be an objective lee reasonable decision does your honor and you know your brethen seem to argue for more latitude even than frazier we would grant as i read your brief you seem to be suggesting that the school has the right to define what is reasonable and isn't that really for us to determine but don't we just apply the type of objective reasonable miss test that we're familiar with applying in other contexts as well well first of all i don't believe it was our intention to suggest necessarily that that schools need to go beyond fraser but a phrase or contain a lot of words but you can grab a hold of many of the new definition which i think one of the reasons why this case has a bit more importance i think is i've been with this case for a year or two now than it did when it first came into my office and that is trying to look at the margins of fraser  when you're otherwise looking at words like lewd vulgar or obscene phrase or also contains words like inappropriate in the sense of something that's inappropriate in this case containing a sexual double entendre which as we point out in our in our case in our a brief judge hardiman that there are number of federal cases in fact every federal case that we could find in which the court saw the phras question as a sexual double entendre was deemed to be appropriately regulated or prohibited under fraser so i don't think we're going beyond fraser and moreover if you're going to win here it has to be fraser not t night to remind myself what those cases and i think it's important to recollect that of course that i believe that at least two of the court or or on those opinions that fraser clearly did not apply and in those girls complaining that that boys came up to them and said you know i love your boobies i want your boobies and various things like that now was this was this a  overwhelming show of substantial disruption no was no disruption to that particular student but i think more importantly and again i don't want to spend our time arguing tanker because i think the takers are a long way to go here but certainly within the court has the ability to look at how the district court the methodology that it used and here i think that the court completely failed completely utterly failed to give the deference that so much of the and in these cases suggests rather what the court did was it took a kind of symmetrical word by word analysis open up a dictionary and said well gee boobies can be birds boobies can be dum connotation that's certainly belied by the fact that there's a number of people here today very interested in this case that the case in turn by playboy that the case was in the front page of usa today all these things that meant clearly there is a sexual connotation here and i think that part of the error that the district court made was it never accorded the discretion that the law says school officials should have of making these decisions otherwise what will  is there are is there not a sexual double entendre or is sexual nuance that is essentially the purpose of which is  u urge that the court had to look almost semantically at every separate situation now if that's the case there i mean in this kind of in a real there's going to be many more well they're all basically you know i love different body parts this one's balls this one's this one is this one's feel my balls this one is oh i love eyeball heart you know all those things clearly you know the movies is kind of on the margins of what might be considered as vulgar well that but it's us to the question i'm interested in particularly with regard to you context and where we place context in our analysis well i think the context certainly them that's that's basically our argument that's that's what we feel that the lower the district court failed to do failed to give any context it made an isolated semantical most of a logical kind of examination of the words rather than looking at the phrase which is a message and certainly the audience the audience is key and cases of taught us like for example that most recently in the morse case it's not so important what what the speaker intended here but it's the reasonable perception that counts i suggest your  honor judge greenberg that the reasonable perception of most pros in a middle school and you know maybe most boys beyond middle school is when they say i love boobies they're not thinking of message of cancer awareness which of course the other irony and the and the other reason why tinker really isn't appropriate here is because remember the irony about this is that this occurred this violation occurred on breast cancer awareness day this is not a case where any message was tried to be suppressed this is a case in which we had a sexual suggestion in once again this virus which is pearl harbor bones and  curiosity goes in and it it certainly is reasonable to suggest that that's going to lead to distraction it's going to lead to disruption again if you if you want to put in take about certain it's inappropriate simply inappropriate  within the context of a school that's trying to promote the civility of discourse and trying to do what it can to focus on warning and to the extent possible blotted out the white noise of some his other distractions and there's no question the puberty as her call it is a major distraction so context yes absolutely essential i have other school clients that didn't didn't think it was significant enough to pin this however there were go back to the community tests and this client felt that in within their community the sexual suggestion a sexual diseases and they all have different little body parts attached to them right so so while all of them have benevolent ject each of them fall within range absolutely purpose to these so we'll hear you back on the bottle thank good morning may it please the court i'm mary catherine roper i'm here for the plaintiffs below the h and k am i think the first thing that we need to talk about is the factual findings that were made by judge mclaughlin after reading a dozen depositions and hearing a full day of testimony she made several important findings of fact and the first was to reject the argument that the bracelets were intended to be provocative intended to attract with a sexual message in fact she heard not only from the representative for keeper breast who talked about their wish to express a love for one's body and self care which is why they use i heart and a diminutive term no no no no the light circuit the night ninth circuit said that the district court found that his intent was to create a report with his fellow students in other words he wanted to get their attention so they would actually listen to what he had to say about the person he wanted to lect but he intended to do it with a lewd message which is something where the preacher in the opinion is this supreme court decision says that when questioned he admitted that he intended the sexual innuendo in his speech i can get you a page number i think that's actually an operation that's in the supreme court opinion in ten was a factual finding that he intended there was a factual finding that he admitted that he intended to be  so tender was that the trial judge yes i honor found frazier did so because he thought it would be effective to establish a rapport with his fellow students and perhaps to amuse them that was the final yes but the one of the factual findings in the supreme court opinion is that fraser mathew fraser when question admittedly the intended the speech to be lewd and to be taken as lewd he intended the sexual have the opinion with me but what it when matthew fraser was questioned he it met it that he intended the lewd the lewd understanding of the speech he made i don't think that the students intent it is as  of causes and i'm a middle school student and i speak it matters not that i had a noble intent if what i said was lewd vulgar or had double entendre or otherwise good to the reasonable person be construed as vulgar lewd or your honor there is no question that cohen's jacket which intended a what he viewed as political and pro social message but did it in a profane manner could not be allowed or would not be allowed in a school we have we've not argued and judge mclaughlin did not argue that the pro social message of these bracelets somehow rescues and otherwise lewd a phrase instead what she said is that that phrase in the context in which it is presented this is different if you say boobies can be used lewdly of course it can but so can the word banana if you say i heart boobies can be used loosely certainly we have heard it from the district about a number of adult contexts in which the history we haven't heard about any context in in the middle school in which that was true but when you say i heart boobies keep a breast and yet on the back of a bracelet you've got keep abreast dot org art education awareness action in the context of that bracelet which is a breast cancer awareness bracelet everybody understands it to be that you look at the phrase in context you don't take it out of context and say how might a pornstar use this phrase is your point that context context is necessary i mean i'm not sure what you mean by dispositive but it's certainly necessary in interpretation is that the is is is it the end of the inquiry that's what i mean  i it informs the entire inquiry i don't see how that you i mean all there are many types of context in the case right one is that this is what i use my my question is obviously you've just quoted us fall to the wayside i caught your honor i'm sorry that is not at all what i'm saying ok i just then your point is context so then your answer to the question would be no context is not the it's the context in which the words are used your honor the question is what does i heart boobies keep a breast me when seen on a breast cancer awareness bracelet right the i'm not talking about the context of this being part of a processional campaign because what you have to look at is the speech and how it will be understood in the context in which it is uttered in the school in which it is uttered that is what we learned from the decisions of this court for instance i ski redneck can be a synonym for the word heck but the question in that case was in the war in hell's school district where those students going to confuse the word redneck on a jeff foxworthy t shirt as a reference to the white supremacist gang the hicks that had terrorized the district and the court said there is no evidence that that's the meaning that's being attributed in this context that is the application we are looking for under frazier because fraser simply cannot be the only context in which i'm sorry the only student speech analysis in which context doesn't matter in every other school speech  weakness in the evidence of destruction but clearly as per judge greenberg's questioning eleven twelve thirteen year old boys viewing this might have a different reasonable view of what a comet the it's your honor this is where we have to talk about the difference between an objective and a subjective standard our right is subject of standard is us or judge crabb from wisconsin says in my view not looking at the events in the school not looking at how this is presented or interpreted or reacted to as the court divined that the reasonable school administrator could reasonably determine that in addition to the noble and appropriate purpose the bracelet could also to many of the students be taken as a double entendre and something that will be the focus of distraction and perhaps harris meant for some of the kids in the school her specific words are although it is a far cry from the extended metaphor for sexual intercourse and fraser the phrase i heart boobies is sexual innuendo that is vulgar at least in the context of a middle school i makes an it's a takes a decision about this that's what judge mclaughlin did not do she looked at how it was presented yes also the intent of the presenters both keep abreast foundation and the students who by the way their testimony is that the word boobies is what they use in their families how they talk with their mothers and grandmothers about their own bodies it's not a sexual term it's a step above  this is you that universal i at there is no evidence that anyone in the context of this case thought otherwise even the school when announcing the ban had a student well they certainly could have said the bracelets from the keeper breast foundation are not allowed i i'm not sure i do allowing the braces from the keep abreast well not if they don't have the i thought they're allowing them as long as they don't have the i hear that is a change they made during the course of litigation indeed the school with officials have on its own it's hard to say the school district isn't fully behind conquering breast cancer they had a whole awareness month right i mean they are we were not really talking about any sort of content discrimination or viewpoint discrimination it really isn't the manner in which the cause is advocated in there saying we're going to we're going to fight breast cancer in myriad ways but we're not going to have the students reference it in this one way actually on a one of the factual findings of judge mclachlan was that the school districts contention that these bracelets were lewd w hoc rationalization what the school district really wanted to do was to decide what was appropriate and they preferred to channel the students into what they thought was a more appropriate breast cancer awareness campaign the susan g komen wear pink et c type of approach now judge judge mclaughlin makes a finding that there was essentially viewpoint discrimination and in one footnote in her opinion i'm not sure that matters pretext is always illegitimate under the first amendment and it is and it in this case it is pretext for an impermissible exercise its cool authority that is a decision that the school is going to decide what is appropriate so so there is no context in your view or are no manner in which i hard these falls within frazier but certainly i heart boobies can be used in sexual way it could be presented in a sexual way with illustrations and so on so could i heart ananas i heart screws i heart pickles a discussion of the relative hardness of millet minerals within the school science curriculum we cannot define the first amendment by the point at which a thirteen year old boy blushes working why why why can't school administrators use their judgment to determine what is going to distract their students what's going to intimidate their student when there was a little bit in the record about some girls being haris by boys high civically with reference to the word in the bracelet there was one documented and one sort of rumored episode of girl saying a boy saying something to girls about their boobies that undertaker of course is not substantial material disruption because that who are more modest and less edgy who aren't comfortable wearing the bracelet that all their friends are i mean there are many different potential variations here or there and these are all the things that then judge alito said cannot form the basis of a first amendment decision when he wrote sacks verses state college area school district now his analysis there was primarily under tinker but there is no there is no first amendment realm not true threat not promotion of of illegal drugs not substantial material disruption where this amorphous it could be bad thing is enough to justify censorship of speech it's like when it's not could be a bad thing it's mean we have to focus on the language of frasier so we mean frasier talks about lewd vulgar and it does use the word inappropriate i in who knows you know which one was inappropriate the one might be perfectly fine to another i think we can all agree on that and i think that's narrowed again by just then judge alito in the sax opinion where he says fraser there are a lot of words and p anywhere did frazier use that was he didn't use a single word that was standing by itself lou what word did he use that was vulgar he did not use a single word that was standing by itself vulgar it was the it was the implication right that some some students thought it was describing in graphic detail a sex act some students were clueless and didn't know what he was driving at other intellectual students might have thought oh he's just trying to get our attention so we'll actually listen to what he has to say instead of talking amongst ourselves this is the reactions were multifarious with the reactions were immediate and general i'm sorry i see a red light your honor ma it's the contrast in this school is that we had two isolated incidents one that didn't even happen until after the ban if you're going to talk about what the reasonable perception is you have to look at the context because that's what we do in every school doesn't actually it doesn't i get to judge greenaway question of about the horse like maybe it was your your adversary's answer the question cohen's jacket or if if a student walked in with a jacket that did not use an f bomb but instead had some very explicit and graphic reference to sex connected to the draft or whatever else the student was was prohibited the question is how do you read that it cannot be simply i could think of a way that that could be lewd which is what the school district does i can think of adult contexts in which that means that could be lewd the question is is the presentation and reception here reasonably viewed as lewd and what it is entirely when it's presented in the way that that judge mclachlan found here a familial juvenile presentation of this it's about breast between testicular cancer prostate cancer breast cancer your honor once again neither judge mclaughlin nor pallies have ever argue that this is a lewd phrase that is rescued by its inclusion in a pro social campaign  not her argument that is clearly not the case con's jacket is a profound i'm not i'm not asking about cohen's i'm asking specifically about the bracelets to which she referenced in oral argument i how how could they possibly be excluded if we say that the first amendment prohibits the school district for making this judgment call because this is a disc this is you the decision that the district court made and that you're reviewing is about the presentation of a message in the context of the eastern area middle school it does not make any decision and judge a mclaughlin made this clear about other messages about other presentations well i mean that's why i'm asking you the question that's why i just asked the question for that very reason the legal if this isn't if a school district doesn't have the latitude to make a judgment call that this bracelet issue in this case as a sexual double entendre how in the world could it be allowed to make the judgment call that the bracelets mr ford mention are also  has nothing to do with it has everything to do with his but since you don't have his annoyed i think one of the things he talked about was prostate cancer ok suppose am i don't see that that i don't see in your hypothetical has not presented me with any evidence that that is intended or understood as a sexual message i of a cancer awareness we are ok so you agree that can be bad and that probably could be viewed as a sexual innuendo and if these girls have been wearing shirt or are bracelets that said feel my boobies i think that we would have a very different case here so it's not about the movies word it's about the modifier in no it's about the entire know there are some claims that we didn't advance in the context of the pullin marion junction motion having to do with the the dress code prohibiting things that are in poor taste and things like that  f indeed the court makes a finding of law that these bracelets are inherently sexual that's probably going to end the case for us for well i'm sorry i think that the court would make the finding that the school i would think that the school district reasonably did make that finding which is of course countered that the factual fi of it is your honor i misspoke if the court said that the school district reasonably did not could i think that's the difference between the subjective in the can but reasonably did find these bracelets to be a sexual double entendre despite them leaving them in the school for two months and and in all the other circumstances that judge mclaughlin cites in making her finding a pretext that would probably leave i was just about to press the fold out that the way down there's not much left i don't know what would be left i think this is pretty much a ball game you know and that's and speaking of ball games with regard to the pla argument here that the the proper focus is on what words are an issue themselves rather than the judgment of school officials i made this argument before the district court this analogy because i happen to think of it reminded me of when they put magistrate judges veteran stadium and i suggested that if that's the approach rather than judging the sound discretion of school officials if every every of these cases is going to be looked into semitic lee then we're going to need constitutional magistrates in every school to make to make that decision i just want to get a couple quick points and i make them both wise you know with regard to the argument about in to overstate your out of but the point the point of it is that i was trying to emphasize the notion that what what should be focused on here and i think what the district court failed to focus on was whether or not be an issue in the first in the case and you know they have the ability to do this or they've done i think very frankly that that to the extent that there was a modification how they viewed it was a function of the fact that when this case came to me yes it was but this is a clear case under fraser and they were worried about more the more about disruption but i don't see a credibility being an issue here whatsoever and i think the important thing is whether or not they had the constitutional authority to make to make a judgment and i would we're going to ban this undertaker but there's really very thin evidence of substantial destruction can they be saved by frazier i think that's pretty much what happened here i mean to the extent that i mean you know i'm not sure whether or not when the case when i was first introduced to the case the client didn't come to me and say gee you know we've been this undertaker or we pinned this under phase or they came to me and said that this is inappropriate for a screw and to have girls girls that were complaining that's what that's what happened so in the sense of could they could they have the wrong citation perhaps but there again i think that underlying the entire argument of both counsel here's the question of what's really well written it's measured by the court in these cases and you know is it reasonable discretion and can that reasonable discretion sterve when different