The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"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 School Dist. No. 403 v. Fraser (1986). Matthew Fraser gave this nomination speech for a friend who was running for high school vice-president:
I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most … of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who 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, pushing and pushing until finally—he succeeds.
Jeff is a man who will go to the very end—even the climax, 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 school can be.
You'll note that none of the words here were what one might colloquially call "vulgarities," but the Court concluded that the school was entitled to discipline Fraser for engaging in "vulgar" speech. (Some language in the opinion suggests that the doctrine might be limited to speech before audiences at school assemblies, but courts have generally read it more broadly than that.)
Today's decision by Judge Paul Maloney in D.A. v. Tri County Area Schools (W.D. Mich.) applies this general principle to D.A.'s wearing a "Let's Go Brandon" T-shirt (multi-asterisk expurgation, as you might gather, in original):
A school can certainly prohibit students from wearing a shirt 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 school student the classroom 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 vulgar and profane. The Sixth Circuit has written that "it has long been held that despite the sanctity of the First Amendment, speech that is vulgar or profane is not entitled to absolute constitutional protection." …
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." School officials have restricted student from wearing shirts that use homophones for profane words … [such as] "Somebody Went to HOOVER DAM And All I Got Was This 'DAM' Shirt." … [Defendants] recalled speaking to one student who was wearing a hat that said "Fet's Luck" … [and asking] a student to change out of a hoodie that displayed the words "Uranus Liquor" because the message was lewd. School officials could likely prohibit students from wearing concert shirts from the music duo LMFAO (Laughing My F***ing A** Off) or apparel displaying "AITA?" (Am I the A**hole?)…. Courts too have recognized how 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 School District can regulate wearing of Let's Go Brandon apparel during school without showing interference or disruption at the school….
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 speech 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 vulgarities or their equivalents towards one's political opponents might have a firm footing in our nation's traditions, but those 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 school reasonably determine that a message conveys profanity, Morse requires deference to that interpretation.
This last paragraph strikes me as something 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 vulgarities—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 vulgarities would be forbidden even if they were nested within "robust political discourse," for instance if a speaker liberally strewed "fucking" as an intensifier in the middle of a long and detailed analysis of the draft or of the President.
Nonetheless, setting aside this paragraph, my tentative view is that the court did plausibly apply Fraser, though taking a relatively broad view of that precedent. The court also notes that B.H. v. Easton Area School Dist. (3d Cir. 2013) (en banc) (the "I ♥ boobies! (KEEP A BREAST)" bracelet case), concluded that:
Under Fraser, a school may also categorically restrict speech that—although not plainly lewd, vulgar, or profane—could be interpreted by a reasonable observer as lewd, vulgar, 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.
