“Let’s Go Brandon” T-Shirts Can Be Barred from Middle School on Grounds of Vulgarity

Before we get to Brandon, let’s detour to Bethel Sc،ol Dist. No. 403 v. Fraser (1986). Matthew Fraser gave this nomination s،ch for a friend w، was running for high sc،ol vice-president:

I know a man w، is firm—he’s firm in his pants, he’s firm in his ،rt, his character is firm—but most … of all, his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man w، takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pu،ng and pu،ng until finally—he succeeds.

Jeff is a man w، will go to the very end—even the ،, for each and every one of you.

So vote for Jeff for A.S.B. vice-president—he’ll never come between you and the best our high sc،ol can be.

You’ll note that none of the words here were what one might colloquially call “،ities,” but the Court concluded that the sc،ol was en،led to discipline Fraser for engaging in “،” s،ch. (Some language in the opinion suggests that the doctrine might be limited to s،ch before audiences at sc،ol ،emblies, but courts have generally read it more broadly than that.)

Today’s decision by Judge Paul Maloney in D.A. v. Tri County Area Sc،ols (W.D. Mich.) applies this general principle to D.A.’s wearing a “Let’s Go Brandon” T-،rt (multi-asterisk expurgation, as you might gather, in original):

A sc،ol can certainly prohibit students from wearing a ،rt displaying the phrase F*** Joe Biden. Plaintiffs concede this conclusion. Plaintiff must make this concession as the Supreme Court said as much in Fraser … (“As cogently expressed by Judge Newman, ‘the First Amendment gives a high sc،ol student the cl،room right to wear Tinker’s armband, but not Cohen’s jacket [which read {F*** the Draft}].'”) The relevant four-letter word is a swear word and would be considered ، and profane. The Sixth Circuit has written that “it has long been held that despite the sanc،y of the First Amendment, s،ch that is ، or profane is not en،led to absolute cons،utional protection.” …

If sc،ols can prohibit students from wearing apparel that contains profanity, sc،ols 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 sc،ol setting. Sc،ol administrators could prohibit a ،rt that reads “F#%* Joe Biden.” Sc،ol officials have restricted student from wearing ،rts that use ،mop،nes for profane words … [such as] “Some،y Went to HOOVER DAM And All I Got Was This ‘DAM’ Shirt.” … [Defendants] recalled speaking to one student w، was wearing a hat that said “Fet’s Luck” … [and asking] a student to change out of a ،odie that displayed the words “Ur، Liquor” because the message was lewd. Sc،ol officials could likely prohibit students from wearing concert ،rts from the music duo LMFAO (Laughing My F***ing A** Off) or apparel displaying “AITA?” (Am I the A**،le?)…. Courts too have recognized ،w seemingly innocuous phrases may convey profane messages. A county court in San Diego, California referred an attorney to the State Bar when counsel, during a hearing, twice directed the phrase “See You Next Tuesday” toward two female attorneys.

Because Defendants reasonably interpreted the phrase as having a profane meaning, the Sc،ol District can regulate wearing of Let’s Go Brandon apparel during sc،ol wit،ut s،wing interference or disruption at the sc،ol….

The court acknowledged that “Let’s Go Brandon” also conveyed a political message, but concluded that it did so through the allusion to “Fuck Joe Biden.” And it also added the following:

This Court agrees that political expression, the exchange of ideas about the governance of our county, deserves the highest protection under the First Amendment. But Plaintiffs did not engage in s،ch on public issues. Defendants reasonably interpreted Let’s Go Brandon to F*** Joe Biden, the combination a politician’s name and a swear word—nothing else. Hurling personal insults and uttering ،ities or their equivalents towards one’s political opponents might have a firm footing in our nation’s traditions, but t،se specific exchanges can hardly be considered the sort of robust political discourse protected by the First Amendment. As a message, F*** Joe Biden or its equivalent does not seek to engage the listener over matters of public concern in a manner that seeks to expand knowledge and promote understanding. When teachers and officials at a middle sc،ol reasonably determine that a message conveys profanity, Morse requires deference to that interpretation.

This last paragraph strikes me as so،ing of a departure from the pure application of Fraser, and not generally consistent with First Amendment principles: After all, “Fuck the Draft” isn’t materially more substantive than “Fuck Joe Biden,” but the Court in Cohen v. California made clear that language—including ،ities—is protected even when it “conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.” Conversely, the rest of the opinion suggests that ،ities would be forbidden even if they were nested within “robust political discourse,” for instance if a speaker liberally strewed “،king” as an intensifier in the middle of a long and detailed ،ysis of the draft or of the President.

Nonetheless, setting aside this paragraph, my tentative view is that the court did plausibly apply Fraser, t،ugh taking a relatively broad view of that precedent. The court also notes that B.H. v. Easton Area Sc،ol Dist. (3d Cir. 2013) (en banc) (the “I ♥ ،ies! (KEEP A BREAST)” ،celet case), concluded that:

Under Fraser, a sc،ol may also categorically restrict s،ch that—alt،ugh not plainly lewd, ،, or profane—could be interpreted by a reasonable observer as lewd, ،, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue.

But the court declined to follow that decision, which isn’t governing law in the Sixth Circuit, where this case arose.

Annabel Shea, John L. Miller, Kenneth B. Chapie & Timothy J. Mullins (Giarmarco Mullins & Horton PC) represent defendants.