The Volokh Conspiracy
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Let's Go Brandon!—to the Principal's Office
From Sixth Circuit Judge John Nalbandian, joined by Judge Karen Nelson Moore, in yesterday's B.A. v. Tri County Area Schools:
Two middle schoolers in Michigan wore sweatshirts emblazoned with the phrase "Let's Go Brandon" to school. Based on the commonly understood meaning of the slogan, the school administrators determined that the sweatshirts were inappropriate for the school environment. They asked the students to remove the sweatshirts, and fearing punishment, the students complied. But they still wanted to wear the sweatshirts at school to express their disapproval of then-President Joe Biden's administration and its policies. So, through their mother, the students sued the school district and several school administrators, alleging that the school deprived them of their First Amendment rights. The district court sided with the school district, concluding that the school could reasonably prohibit the sweatshirts since they were vulgar speech. Because the school reasonably understood the slogan "Let's Go Brandon" to be vulgar, we affirm….
[S]tudents do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969). But those retained rights "are not automatically coextensive with the rights of adults in other settings." Bethel Sch. Dist. No. 403 v. Fraser (1986). Under Tinker, schools can generally forbid or punish student speech that causes a "substantial disruption of or material interference with school activities." But the Supreme Court has recognized several exceptions to Tinker's standard. On school grounds, a school may generally prohibit (1) indecent, lewd, and vulgar speech [as in Fraser]; (2) speech that promotes illegal drug use; and (3) speech that others may reasonably perceive as bearing the imprimatur of the school. Without one of these exceptions, the Tinker standard applies and the school has the burden of showing that it reasonably believes its regulation of student speech will prevent substantial and material interference with school functions.
This case is about the vulgarity exception. And specifically, how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message. To answer that, we must resolve two preliminary questions. The first is linguistic, asking whether a phrase that lacks explicitly profane words might still have a vulgar meaning. The second is doctrinal, asking whether a school administrator may prohibit student political speech that has a vulgar message. The district court answered yes to both and so held that the plaintiffs hadn't suffered any constitutional deprivation because the school administrators' actions comported with the First Amendment. For the reasons given below, we agree….
The question of what is vulgar or profane can depend on the individual. To paraphrase the late George Carlin, everybody has a list of words that they consider profane—but the contents of that list vary greatly from person to person. In answering whether a jacket emblazoned with the words "Fuck the Draft" deserved constitutional protection, the Supreme Court noted that it's "often true that one man's vulgarity is another's lyric." So this high degree of subjectivity means that what is profane often hinges on who decides. And in related contexts, the Supreme Court has said that the question of who decides should be evaluated in a manner "consistent with our oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges."
The Constitution doesn't hamstring school administrators when they are trying to limit profanity and vulgarity in the classroom during school hours. Again, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But neither are school administrators powerless to prevent student speech that the administrators reasonably understand to be profane or vulgar. And so "the First Amendment gives a … student the classroom right to wear Tinker's armband, but not Cohen's jacket." Schools are charged with teaching students the "fundamental values necessary to the maintenance of a democratic political system." And avoiding "vulgar and offensive terms in public discourse" is one such value. After all, "[e]ven the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences." …
[A] euphemism is not the same as the explicitly vulgar or profane word it replaces. "Heck" is not literally the same word as "Hell." But the word's communicative content is the same even if the speaker takes some steps to obscure the offensive word. The plaintiffs concede that a school could prohibit students from saying "Fuck Joe Biden" because "[k]ids can't say 'fuck' at school." And yet they insist that the euphemism "Let's Go Brandon" is distinct—even though many people understand that slogan to mean "Fuck Joe Biden." So it's not clear that the school administrators acted unreasonably in determining that the euphemism still conveyed that vulgar message.
After all, Fraser—the first case that recognized the vulgarity exception—involved a school assembly speech that had a rather elaborate sexual metaphor instead of explicitly vulgar or obscene words. And yet the Supreme Court had no reservation in holding that the school was not required to tolerate "lewd, indecent, or offensive speech and conduct." And it was up to the school to determine "what manner of speech in the classroom or in school assembly is inappropriate." Because "[t]he pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students—indeed to any mature person," the school could discipline his speech despite the absence of explicitly obscene or vulgar words. And so Fraser demonstrates that a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.
This conclusion fits with our circuit precedent, which reads Fraser to leave it to the school to decide what is vulgar or profane so long as the decision is not unreasonable….
[And] while the Court in Fraser did distinguish "between the political 'message' of the armbands in Tinker and the sexual content of [Fraser's] speech," that doesn't mean that it discounted the political nature of that speech [which was a speech urging the election of a classmate to student government office]. Indeed, much of the Court's opinion is spent explaining why the speech's vulgarity allowed the school to punish Fraser despite the protections for student political speech. The Court's reference to "Cohen's jacket," shows that when student speech is both vulgar and political, the school's interest in prohibiting vulgarity predominates over the student's interest in making a political statement in the language of their choosing….
Judge John Bush dissented:
[T]he speech here—"Let's Go Brandon!"—is neither vulgar nor profane on its face, and therefore does not fall into [the Fraser] exception. To the contrary, the phrase is purely political speech. It criticizes a political official—the type of expression that sits "at the core of what the First Amendment is designed to protect." No doubt, its euphemistic meaning was offensive to some, particularly those who supported President Biden. But offensive political speech is allowed in school, so long as it does not cause disruption under Tinker. As explained below, Tinker is the standard our circuit applied to cases involving Confederate flag T-shirts and a hat depicting an AR-15 rifle—depictions arguably more offensive than "Let's Go Brandon!" …
The majority says the sweatshirts' slogan is crude. But neither the phrase itself nor any word in it has ever been bleeped on television, radio, or other media. Not one of the "seven words you can never say on television" appears in it .Instead, the phrase has been used to advance political arguments, primarily in opposition to President Biden's policies and secondarily to complain about the way liberal-biased media treats conservatives. It serves as a coded critique—a sarcastic catchphrase meant to express frustration, resentment, and discontent with political opponents. The phrase has been used by members of Congress during debate. And even President Biden himself, attempting to deflect criticism, "agreed" with the phrase.
We cannot lose sight of a key fact: the students' sweatshirts do not say "F*ck Joe Biden." Instead, they bear a sanitized phrase made famous by sports reporter Kelli Stavast while interviewing NASCAR race winner Brandon Brown at the Talladega Superspeedway. The reporter said the crowd behind them was yelling "Let's go, Brandon!" She did not report the vulgar phrase that was actually being chanted. The Majority even concedes Stavast may have used the sanitized phrase to "put a fig leaf over the chant's vulgarity." That is telling….
Annabel F. Shea (Giarmarco, Mullins & Horton, P.C.) represents the school defendants.
