A federal judge in Michigan recently upheld a public school’s ban on shirts bearing the logo “Let’s Go Brandon.” The court concluded that the shirts conveyed a profane meaning, which allowed the school to ban it. This is an interesting confrontation between First Amendment interests and the rights of schools to impose speech restrictions.
The case sort of begins in October 2021. In October 2021, Brandon Brown won a NASCAR race in Talladega, Ala. Shortly after the race, Brown appeared live on camera with a reporter for the television network covering the event. The crowd in the background could be heard shouting “F*** Joe Biden.” The reporter stated that the crowd was chanting “Let’s Go Brandon.” The reporter’s inaccurate description subsequently appeared on all sorts of merchandise including bumper stickers and clothing.
For Christmas in 2021, two students at the Tri County Middle School in Newaygo County, Mich., received, as gifts from their mother, sweatshirts with the phrase “Let’s Go Brandon” written across the front. The mother acknowledged seeing the video of the interview with Brandon Brown before giving the sweatshirts to her children.
That spring semester, each student wore the sweatshirt to school, only to be told to remove it by Assistant Principal Andrew Buikema. The students ultimately sued the school district, along with Buikema and another teacher, for violating their First Amendment rights. While folks on either side of the issue may see this as a simple case of speech suppression or a reasonable policy, the answer is a little more complicated.
Students do not shed their First Amendment rights when they walk into a public school. In the landmark 1969 case of Tinker v. Des Moines Independent Community School District, the United States Supreme Court ruled that schools could not prohibit political speech, so long as that speech did not disrupt the educational process. In Tinker, that meant that a public school could not prohibit students from wearing black armbands to protest the Vietnam War.
But in a 1986 Supreme Court case – Bethel School District No. 403 v. Fraser – the Court ruled that a school has “an interest in protecting minors from exposure to vulgar and offensive spoken language.” The Court also found that “it is a highly appropriate function of a public school education to prohibit the use of vulgar and offensive terms in public discourse.” For that reason, the Court held that “schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct[.]”
So, is “Let’s Go Brandon” innocuous political speech, protected by the First Amendment, or profanity that has no protection in a public school? Judge Paul Maloney, a George W. Bush appointee, decided it was the latter. As he noted in his decision, “If schools can prohibit students from wearing apparel that contains profanity, schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane. Removing a few letters from the profane word or replacing letters with symbols would not render the message acceptable in a school setting. School administrators could prohibit a shirt that reads ‘F#%* Joe Biden.'” He ultimately ruled “[b]ecause Defendants reasonably interpreted the phrase as having a profane meaning, the School District can regulate wearing of Let’s Go Brandon apparel during school without showing interference or disruption at the school.”
The court here showed much deference to the school’s judgment. I don’t know if the students will appeal to the 6th U.S. Circuit Court of Appeals, but if that court gives leeway to schools in this scenario, it will make the odds for a successful appeal awfully long.
See also: Dress Codes
How much can public schools control what students wear?
Jack Greiner is an Ohio lawyer and authority on media law and First Amendment matters. He has represented clients in public-records disputes, access to courts, open-meetings cases and a variety of defamation cases. His “Jack Out of the Box” column is published here by permission.
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