HOWARD CITY, Mich. (Michigan News Source) – A three-judge panel from the 6th U.S. Circuit Court of Appeals has weighed in on Michigan’s “Let’s Go Brandon” shirt case, B.A. et al. v. Tri County Area Schools et al., ruling that “The protection for political speech doesn’t give a student carte blanche to use vulgarity at school – even when that vulgarity is cloaked in innuendo or euphemism.”
Court sides with school in “Let’s Go Brandon” shirt dispute.
A Michigan mom filed a lawsuit on behalf of her two middle school sons after Tri County Middle School ordered them to remove their “Let’s Go Brandon” shirts in 2022 – apparel featuring a political slogan critical of then-President Joe Biden. The complaint argues that the school’s ban violated the boys’ First Amendment rights.
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The phrase “Let’s Go Brandon” became a popular political slogan in 2021 after a NASCAR interview in which a reporter misinterpreted a crowd’s chant of “F*** Joe Biden” as support for driver Brandon Brown. The phrase, which the circuit court admits turned into different meanings for different people, also quickly turned into a coded way for critics of President Biden to express their disapproval without using profanity.
In banning the shirts, the Tri County Area Schools district argued the shirts could cause disruption because of their political nature and connection to profanity implied by the slogan’s origin.
Court says schools can ban “vulgar” political messages.
According to the Associated Press, the 6th U.S. Circuit Court of Appeals recently upheld the school’s decision to ban the shirts in a 2-1 ruling on October 14, saying that administrators acted within their authority to restrict student speech that could be seen as vulgar or disruptive in a school environment.
The court said that the school administrators reasonably interpreted the “Let’s Go Brandon” slogan as being vulgar speech that “a school may categorically prohibit” despite its political message and that requesting that students remove clothing with that slogan didn’t violate the First and Fourteenth Amendments.
“Protecting” students from words that aren’t actually vulgar.
Court documents say that the school’s decision was based on the “commonly understood meaning of the slogan” and therefore deemed the shirts to be “inappropriate” and in violation of their dress code because of the “double meaning” of the slogan. The dress code at the school district was cited as prohibiting any attire with “messages or illustrations that are lewd, indecent, vulgar or profane…” The district argued that the meaning of “Let’s Go Brandon” was profane or vulgar and that the dress code allowed administrators to prevent students from wearing clothing with profanity or vulgarity.
The district court agreed, concluding that the school could reasonably prohibit the sweatshirts since they were vulgar speech. The plaintiffs appealed and the case went to the 6th U.S. Circuit Court of Appeals.
Dissenting opinion is lengthy.
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Judge John K. Bush of the Sixth Circuit wrote a strong, and very long, dissent in ruling, arguing that the school district and the majority misapplied constitutional standards and wrongly limited students’ political expression. Bush said the case “should be governed by Tinker…,” referring to the Supreme Court’s 1969 Tinker v. Des Moines decision protecting students’ right to wear black armbands in protest of the Vietnam War.
Bush wrote: “The majority blesses this outcome without requiring that the school district meet the legal standard of Tinker…Under Tinker, student political speech may not be restricted in school unless the speech ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school’ or might ‘reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.’”
Bush argued that the phrase “Let’s Go Brandon” is “purely political speech” criticizing a president – and not “vulgar or profane on its face.” He warned that by letting administrators label political slogans as vulgar, the court risked giving schools “boundless discretion – akin to ‘I know it when I see it’…to redefine facially non-vulgar speech as vulgarity in order to ban it.”
Bush concluded: “The liberty to criticize the president is not a freedom that stops at the schoolhouse door…If we allow schools the power to censor political speech by recharacterizing it as vulgarity, we risk turning disagreement with political speech into justification for its censorship – something the First Amendment flatly forbids.”
Plaintiffs’ attorneys respond.
Michigan News Source reached out to the plaintiffs’ attorneys about the recent court decision. Alex Griswold, Communications Campaign Manager at FIRE (the Foundation for Individual Rights and Expression), responded by saying, “Yesterday, the U.S. Court of Appeals for the Sixth Circuit held in a 2-1 decision that public schools do not violate the First Amendment when they censor students – here, FIRE’s clients – wearing clothing with the ‘Let’s Go Brandon’ political slogan.”
Griswold went on to say, “We are disappointed by the ruling. Supreme Court precedent makes clear that public school students have a right to wear non-disruptive political apparel to school. ‘Let’s Go Brandon,’ like ‘heck’ and ‘fudge,’ is a purposely non-profane euphemism, frequently used in congressional floor speeches. As Judge Bush’s dissent explains, ‘Let’s Go Brandon!’ – regardless of its origin – has evolved into a widely recognized political slogan used to express opposition to a now-former president. It is not vulgar on its face … [and] has become a political hallmark entitled to First Amendment protection. But the majority opinion disagreed, granting public school administrators unchecked authority to censor political speech in the name of prohibiting subjectively ‘vulgar’ messages.”
Conor Fitzpatrick, FIRE’s lead attorney on the case, had this response to the ruling: “The majority held that no matter how careful teenagers are to express their political opinions in a non-profane, school- appropriate way, schools may censor them if their expression might cause someone to think about a swear word. America’s students are not so fragile, and the First Amendment is not so brittle.”
FIRE says they will appeal this decision and continue fighting for the First Amendment rights of their clients and public school students nationwide.
