May 06, 2020 Headnote

What Does Your Body Say About You? Not Enough, the Ninth Circuit Says

Even the lack of clothing, in the right circumstances, will move the Court’s First Amendment needle to a finding of “expressive conduct.”

Chuck Tobin and Kristel Tupja

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Self-expression has never been more vibrant. Many of us each day fill the blogosphere with self-revelatory musings on every aspect of our lives. We display on our cars and our clothes images of rainbows, animals, tools, office equipment, really bad hair plugs, infants, guns, religious icons—all to show our association with movements, attitudes, or social issues. For an increasing number, or so it seems, even our bodies have become billboards, adorned with tattoos and piercings that furnish insight into how we think and feel.

Of course, throughout civilization’s history, our fashion choices also have communicated much about who we are. Purple robes for Roman royalty. Red-coat or blue-coat uniforms for the Loyalists or the Revolutionaries. Rolex watches for the financially successful. Jaunty chapeaux for the French and the Francophiles.

American social doctrine teaches us that self-expression is a natural right. The law, for the most part, recognizes this. That’s why the Supreme Court upheld Mary Beth Tinker’s right to wear a black armband to elementary school to express her family’s disagreement with the Vietnam War. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Paul Cohen upped the silent-expression game, and the justices enabled scores of other caustic protestors who came after Cohen, by wearing into a courthouse a jacket with the words “Fuck the Draft” on the back. Cohen v. California, 403 U.S. 15 (1971). In more recent years, students at a Pennsylvania middle school convinced the Third Circuit that donning bracelets proclaiming “I ♥ boobies! (KEEP A BREAST)” for cancer awareness could not be banned by the school district because the bracelets commented on a social issue. B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013).

Illustration by Sean Kane.

Illustration by Sean Kane.

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