Analysis Law and Policy

The Battle Over ‘I Love Boobies’

Annamarya Scaccia

While a federal court may have found "I Love Boobies" bracelets protected under the First Amendment, so students can wear them to school, the court of public opinion still takes issue with such campaigns—many people find them toxic to the overall breast cancer conversation.

Last Monday, the U.S. Court of Appeals for the Third Circuit upheld an injunction prohibiting the Easton Area School District in Pennsylvania from enforcing a ban on “I Love Boobies! Save a Breast!” bracelets, the trendy bands that promote the Keep a Breast Foundation’s national breast cancer outreach and awareness campaign. But while a federal court may have found the bracelets protected under the First Amendment, the court of public opinion still takes issue with “I Love Boobies” and similar campaigns, with many people finding them toxic to the overall breast cancer conversation.

In its 9-5 decision, the federal court rejected the school district’s claim that the popular slogan is lecherous and disruptive, ruling that it provides commentary on a prevalent social issue. Particularly, Judge D. Brooks Smith wrote in his 74-page opinion for B.H. and K.M. v. Easton Area School District:

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.

“It’s a tremendous ruling supportive of student free speech,” Mary Catherine Roper, senior staff attorney at the American Civil Liberties Union of Pennsylvania (ACLU-PA) and lead counsel in the case, told Rewire. “What this ruling does is recognize that teenagers talk about important things, whether it’s political issues [or] social issues. That’s the type of speech we most want to protect.”

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The August 7 judgment puts to bed years of litigation that began in November 2010, when the ACLU-PA filed a lawsuit challenging the Easton Area School District’s “I Love Boobies!” bracelet ban, claiming it infringed on students’ First Amendment right to free speech. The original suit was lodged on behalf of Easton Area Middle School students Kayla Martinez and Brianna Hawk, who were suspended in October 2010 for declining to adhere to the ban, which was imposed over a month after students started wearing the wristbands without incident. In rationalizing the interdict, the middle school asserted some students were made uneasy by human sexuality topics, others were “prompted” to make sexual innuendos, and some staff found them offensive, the lawsuit claims.

While, in 2011, a federal judge granted ACLU-PA’s request for an emergency injunction on the ban, the Easton Area School District appealed the enjoinment, arguing the message behind the Keep a Breast Foundation’s catchphrase could be misconstrued as “lewd” and potentially hinder school activities. To prove such, the district invoked both the Supreme Court’s 1986 decision in Bethel School District v. Fraser, which upholds that schools can restrict student speech if it is “vulgar, lewd, profane or plainly offensive” (meaning it offers no fundamental social or political value to a broader conversation), and 1969’s Tinker v. Des Moines Independent Community School District, which states students have a constitutional right to free speech, but said speech can be regulated if a school proves it “materially and substantially interfere[s] with the requirements of appropriate discipline” in school operations. In its Monday decision, however, the Third Circuit found that the Easton Area School District could not prove either of its claims under these two edicts since the message is meant to stir constructive dialogue.

This is not the first time that “I Love Boobies” and similarly chest-centric breast cancer awareness campaigns, like the “Save the Ta-Tas” bumper stickers, have been subject to school bans. Moffat County School District in Colorado barred students from wearing Keep a Breast’s popular wristband in 2011, but rescinded the ban that year after pressure from the ACLU of Colorado. Sauk Prairie Middle School in Wisconsin also banned the same bracelets, and a federal court judge ruled in 2012 that it could continue to impose that ban. Wearing “I Love Boobies!” gear has also been prohibited at Laramie Junior High School in Wyoming (the ban was reversed), and at an Elmira, Oregon, high school, reports the Huffington Post. Similarly, two years ago, cheerleaders at an Arizona high school were banned from wearing t-shirts brandishing the slogan, “Feel for lumps, save your bumps,” in honor of Breast Cancer Awareness Month.

“[The August 7 decision] is a really important rule for schools to follow. When they see a message that a student is conveying a message, is talking about something that is a social or political issue, they can’t go looking for a way to eventually sanitize that,” Roper told Rewire. “This means that schools have to really confront the fact that kids are gonna talk about controversial issues. They need to make sure there’s room for that conversation to happen.”

But not everyone thinks “I Love Boobies!” is a message worth promoting. Last year, Jessica S. Holmes, a public voices fellow with the Op-Ed Project, opined at the Huffington Post that these “pink ribbon culture” movements present breast cancer as “a ‘sexy’ disease”—one that should be publicly represented by “young, intact, firm ta-tas in order to save them.” Holmes continued, “Cancerous breasts threaten idealized femininity and the eroticization of the female body, and these ‘awareness’ campaigns are no different from the over-sexualized and fetishized imagery in mainstream culture, which reduces a woman’s value to her body parts.”

Similarly, in 2012, Jazmine Walker wrote for the blog Furious and Brave that intonations like “Saving the Boobies” and pink ribbon culture make breast cancer an erogenous commodity under “the guise of raising awareness” without bringing consciousness to socioeconomic and racial disparities linked to the disease. In fact, a recent 2013 University of Pennsylvania study discovered that Black women die at higher rates from breast cancer than white women, although Black women are less likely to develop the disease, according to a Cancer Epidemiology article cited by Walker. This inequity, notes the sociologist-activist, can be attributed to disproportion in health-care access and unequal treatment experienced by people of color in isolated communities. Also, the UPenn study showed that for women of color, cancer is more often discovered at a later stage, which can be compounded by other health conditions. “We must approach breast cancer in the same ways that we approach many women’s issues—from the standpoint of addressing the multiple oppressions that are associated with our multiple identities,” writes Walker. “We must move past awareness and early detection and start having conversations on how to rectify the inequalities that lead to Black women dying more often than their white counterparts.”

For Peggy Orenstein, author of the New York Times bestsellers Cinderella Ate My Daughter and Waiting for Daisy, phrases like “I Love Boobies” are “disastrous,” misleading buyers into thinking they are “doing something useful” in helping reduce the disease’s mortality rates. Instead, it feeds off of our collective consumer culture and offers the minimalist opportunity for performing a good deed, she says.

“One big issue is that the money raised by these campaigns is not necessarily going to something that’s going to alleviate the problem,” Orenstein, a two-time cancer survivor, told Rewire. “Why are you giving money to wearing a bracelet … that is not actually doing anything to reduce the incidence of breast cancer? … If you’re going to make a gesture, make it one that means something to women with cancer.”

Too little of the money raised by “pink ribbon culture,” said Orenstein, actually goes toward research. At Susan G. Komen for the Cure, for instance, some $69 million of about $423 million went to research in 2012, while about $174 million went to public health and education—the largest expenditure of Komen’s expenses.

As for the Keep a Breast Foundation, the California-based nonprofit’s mission is to provide support and education to youth about prevention, early detection, and cancer-causing environmental toxins, with “I Love Boobies!” serving as an awareness program and dialogue initiator. Proceeds from the bracelets, claims Keep a Breast, also “[support] important studies” via grant dollars.

However, Orenstein said, “Awareness has become an end in itself, like that’s a good enough reason to sell something or wear something. We acknowledge it to the fact that we no longer understand what we’re acknowledging [and] what needs to be done. There [are] so many women out there who are ill and dying. They need our help and our support and our research.”

Orenstein agrees that “sexy breast cancer” culture also sexualizes the disease, which is one of the leading causes of mortality among women; 1 in 8 women will be diagnosed with breast cancer during her life, and in 2012 alone it was expected that an estimated 39,920 individuals in the United States—39,510 women and 410 men—would die from the disease. The hawk-like focus on breasts makes the breast the symbol and “totality” of women at the expense of the woman, said Orenstein. She added that this merchandizing and objectification also marginalizes the experiences of not only breast cancer survivors, but women who no longer have their breasts; it’s a shallow message that glosses over the struggle with sexuality and femininity.

“It ended up being kind of an expendable organ when need be. I’d rather be here than have the ‘boobies’ back,” said Orenstein, who had one of her breasts removed and reconstructed last year, after her breast cancer returned at age 50, and is on medication treatment for the next five to ten years. “So when you sort of say, ‘I Heart Boobies,’ well, mine’s not there anymore.”

Still, Roper says that while some people, like Orenstein, Walker, and Holmes, view “I Love Boobies!” and analogous messaging as curt, there are others who also take these “cutesy” and “light-hearted” campaigns as an attempt to embrace conversations around the disease in a more “self-affirming” and “strengthening” way.

“My mother died of breast cancer six months before I started this case. If she had known about these bracelets, she’d have had one in every color,” Roper said. “Different people want to deal with things in different ways, and that is why we have a First Amendment. We don’t have one right way of talking about breast cancer.”

Roundups Politics

Campaign Week in Review: Tim Kaine Outlines Plan to ‘Make Housing Fair’

Ally Boguhn

“A house is more than just a place to sleep. It's part of the foundation on which a family can build a life,” wrote Sen. Tim Kaine (D-VA). “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Donald Trump made some controversial changes to his campaign staff this week, and Sen. Tim Kaine (D-VA) noted his commitment to better housing policies.

Trump Hires Controversial Conservative Media Figure

Republican presidential nominee Trump made two notable additions to his campaign staff this week, hiring Breitbart News’ Stephen Bannon as CEO and GOP pollster Kellyanne Conway as campaign manager.

“I have known Steve and Kellyanne both for many years. They are extremely capable, highly qualified people who love to win and know how to win,” said Trump in a Wednesday statement announcing the hires. “I believe we’re adding some of the best talents in politics, with the experience and expertise needed to defeat Hillary Clinton in November and continue to share my message and vision to Make America Great Again.”

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Both have been criticized as being divisive figures.

Conway, for example, previously advised then-client Todd Akin to wait out the backlash after his notorious “legitimate rape” comments, comparing the controversy to “the Waco with David Koresh situation where they’re trying to smoke him out with the SWAT teams.” According to the Southern Poverty Law Center (SPLC), Conway is also “often cited by anti-immigrant and anti-Muslim organizations such as the think tank Center for Security Policy and NumbersUSA.”

Under Bannon’s leadership, “mainstream conservative website” Breitbart.com changed “into a cesspool of the alt-right,” suggested the publication’s former editor at large, Ben Shapiro, in a piece for the Washington Post‘s PostEverything. “It’s a movement shot through with racism and anti-Semitism.”

Speaking with ABC News this week, Kurt Bardella, who also previously worked with Bannon at Breitbart, alleged that Bannon had exhibited “nationalism and hatred for immigrants, people coming into this country to try to get a better life for themselves” during editorial calls.

“If anyone sat there and listened to that call, you’d think that you were attending a white supremacist rally,” said Bardella.

Trump’s new hire drew heated criticism from the Clinton campaign in a Wednesday press call. “The Breitbart organization has been known to defend white supremacists,” said Robby Mook, Clinton’s campaign manager. After pointing to an analysis from the SPLC linking Breitbart to the extremist alt-right movement, Mook listed a number of other controversial positions pushed by the site.

“Breitbart has compared the work of Planned Parenthood to the Holocaust. They’ve also repeatedly used anti-LGBT slurs in their coverage. And finally, like Trump himself, Breitbart and Bannon have frequently trafficked in all sorts of deranged conspiracy theories from touting that President Obama was not born in America to claiming that the Obama Administration was ‘importing more hating Muslims.’”

“It’s clear that [Trump’s] divisive, erratic, and dangerous rhetoric simply represents who he really is,” continued Mook.

Kaine Outlines Plan to “Make Housing Fair”

Clinton’s vice presidential nominee Kaine wrote an essay for CNN late last week explaining how the Clinton-Kaine ticket can “make housing fair” in the United States.

“A house is more than just a place to sleep. It’s part of the foundation on which a family can build a life,” wrote Kaine. “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Kaine shared the story of Lorraine, a young Black woman who had experienced housing discrimination, whom Kaine had represented pro bono just after completing law school.

“This is one issue that shows the essential role government can play in creating a fairer society. Sen. Ed Brooke, an African-American Republican from Massachusetts, and Sen. Walter Mondale, a white Democrat from Minnesota, came together to draft the Fair Housing Act, which protects people from discrimination in the housing market,” noted Kaine, pointing to the 1968 law.

“Today, more action is still needed. That’s why Hillary Clinton and I have a bold, progressive plan to fight housing inequities across Americaespecially in communities that have been left out or left behind,” Kaine continued.

The Virginia senator outlined some of the key related components of Clinton’s “Breaking Every Barrier Agenda,” including an initiative to offer $10,000 in down payment assistance to new homebuyers that earn less than the median income in a given area, and plans to “bolster resources to enforce Fair Housing laws and fight housing discrimination in all its forms.”

The need for fair and affordable housing is a pressing issue for people throughout the country.

“It is estimated that each year more than four million acts of [housing] discrimination occur in the rental market alone,” found a 2015 analysis by the National Fair Housing Alliance.

No county in the United States has enough affordable housing to accommodate the needs of those with low incomes, according to a 2015 report released by the Urban Institute. “Since 2000, rents have risen while the number of renters who need low-priced housing has increased,” explained the report. “Nationwide, only 28 adequate and affordable units are available for every 100 renter households with incomes at or below 30 percent of the area median income.”

What Else We’re Reading

CBS News’ Will Rahn penned a primer explaining Trump campaign CEO Bannon’s relationship to the alt-right.

White supremacists and the alt-right “rejoice[d]” after Trump hired Bannon, reported Betsy Woodruff and Gideon Resnick for the Daily Beast.

Clinton published an essay in Teen Vogue this week encouraging young people to fight for what they care about, learn from those with whom they disagree, and get out the vote.

“In calling for ‘extreme vetting’ of foreigners entering the United States, Republican presidential nominee Donald Trump suggested a return to a 1950s-era immigration standard—since abandoned—that barred entry to people based on their political beliefs,” explained USA Today.

Trump wants to cut a visa program “his own companies have used … to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills,” according to a report by the New York Times.

A Koch-backed group “has unleashed an aggressive campaign to kill a ballot measure in South Dakota that would require Koch-affiliated groups and others like them to reveal their donors’ identities.”

News Law and Policy

North Carolina, Texas Want ‘Discriminatory’ Voter ID Laws Reinstated

Imani Gandy

Republicans in state legislatures that have passed rigid voter ID laws have claimed that such laws are necessary to prevent in-person voter fraud. GOP-led investigations, however, have not turned up any evidence of voter fraud.

Officials in North Carolina and Texas want the Supreme Court to reinstate voter ID laws after two federal appeals courts ruled they should not take effect, setting the stage for a potential Roberts Court fight over voting rights during a presidential election.

North Carolina Gov. Pat McCrory (R) on Monday said in a statement that the state had asked the U.S. Supreme Court to stay last month’s Fourth Circuit Court of Appeals ruling that struck down the voter ID requirement. The Fourth Circuit Court of Appeals released that decision in July, holding that the Republican-majority legislature had enacted the voter ID provision of HB 589 with a discriminatory intent to burden Black voters, and that it violated the Voting Rights Act of 1965.

McCrory said the Fourth Circuit’s ruling striking down that state’s voter ID law would create confusion during the upcoming November election.

“Allowing the Fourth Circuit’s ruling to stand creates confusion among voters and poll workers and it disregards our successful rollout of Voter ID in the 2016 primary elections,” McCrory said in a statement.

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“The Fourth Circuit’s ruling is just plain wrong and we cannot allow it to stand. We are confident that the Supreme Court will uphold our state’s law and reverse the Fourth Circuit,” he continued.

North Carolina is now represented by Paul Clement, who successfully argued Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. In its emergency filing, the state asked the Supreme Court to stay the Fourth Circuit’s ruling, arguing that the 2013 GOP-backed elections law “was the product not of racial animus, but of simply policy disagreements between two political parties about what voting measures are best for North Carolina,” according to SCOTUSblog.

North Carolina will petition the Supreme Court for a writ of certiorari in the upcoming term. In the meantime, the state awaits the Supreme Court’s ruling on its emergency request for a stay.

A spokesperson for Texas Attorney General Ken Paxton said on Tuesday that Texas would appeal the Fifth Circuit Court of Appeals’ ruling that Texas’ voter ID law, SB 14, disproportionately burdened Black and Latino voters in violation of the Voting Rights Act, according to the Dallas Morning News.

Writing for the Fifth Circuit majority, Judge Catharina Haynes wrote, “[t]he record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.”

“The primary concern of this court and the district court should be to ensure that SB 14’s discriminatory effect is ameliorated … in time for the November 2016 election,” Haynes continued.

In response to the Fifth Circuit’s ruling, U.S. District Court Judge Nelva Gonzales Ramos approved a plan that would allow voters without the requisite photo identification to vote in Texas in the November election, absent the Roberts Court stepping in.

Under Ramos’ order, people can vote if they sign a declaration of citizenship and present proof of residence in Texas, such as a paycheck stub, bank statement, or utility bill, according to the Texas Tribune.

Paxton’s spokesperson would not specify whether the state would file an emergency appeal in advance of its petition for writ of certiorari. In order to reinstate the voter ID law, Texas would need to file an emergency appeal and ask the Supreme Court to stay the case, as officials in North Carolina have done.

Republicans in state legislatures that have passed rigid voter ID laws have claimed that such laws are necessary to prevent in-person voter fraud. GOP-led investigations, however, have not turned up any evidence of voter fraud. A study conducted by Loyola Law School professor Justin Levitt found a mere 31 credible incidents of voter impersonation out of more than 1 billion votes that were cast nationwide from 2000 through 2014.

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