Protected speech or profanity?

On Thursday, attorneys for two Michigan middle school students argued before the 6th U.S. Circuit Court of Appeals that their clients have a right to wear sweatshirts with political statements at school. The school can’t censor the shirts because of a phrase that is protected political speech and contains no explicit words, the attorneys contended.

In 2022, school officials banned the students from wearing sweatshirts that read, “Let’s Go Brandon.” The phrase comes from a viral interview clip following Brandon Brown’s 2021 win of a NASCAR race in Talladega, Ala. As fans chanted “[obscenity] Joe Biden” in the background, a reporter suggested the fans were instead yelling “Let’s Go Brandon.” Some conservatives began using the phrase to express disagreement with the Biden administration.

In early 2022, two students at Tri County Middle School in Howard City, Mich., wore sweatshirts with the message to school. They had received the clothing from their parents as Christmas presents.

School officials repeatedly told the students to take off the sweatshirts, saying they weren’t allowed to wear them because of the swear word behind the phrase. After several repeat occurrences, the students stopped wearing the clothing, fearing harsher discipline.

They sued the school a year later, alleging that officials had violated their First Amendment rights and wrongfully interpreted the shirts as vulgar.

Last August, a federal district court judge disagreed with the students and granted the school district’s motion to dismiss. “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,” said U.S. District Judge Paul Maloney. “Removing a few letters from the profane word or replacing letters with symbols would not render the message acceptable in a school setting.”

The students appealed to the 6th Circuit in December. Their opening brief argues that senators, radio and television networks, and even former President Biden used the phrase publicly without being censored because it contains “sanitized” speech.

“From bleeped swear words on television to Kidz Bop albums, Americans know the difference between sanitized expression and a profane original,” the brief concludes.

At Thursday’s oral arguments, Conor Fitzpatrick, an attorney for the Foundation for Individual Rights and Expression, argued that the students engaged in speech protected under the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. In that case, the high court found that students can engage in political speech as long as it isn’t disruptive to the educational environment.

Representing the school, attorney Annabel Shea argued that the case actually falls under the Supreme Court case Bethel School District v. Fraser. In the 1986 ruling, the justices determined students can be disciplined for lewd and vulgar speech. She said the Michigan students knew that their shirts directly referenced a profane phrase.

Circuit Judge John Bush pressed Shea on the school’s response. “How can you say that one school district can have this authority to ban it where it’s not banned anywhere else,” he asked.

“I would say that this was a discretionary decision made by an administrator,” Shea started to reply.

“That’s also giving power to an admin over a parent,” Bush interjected. “The parent apparently gave it to the child as a Christmas present, so the parents approved of it.”

Fitzpatrick later reiterated that the sweatshirts fall under Tinker’s protected speech, not Fraser’s definition of profane speech. If school officials get to decide the speech is vulgar, it could lead to viewpoint discrimination, he told me.

“It would mean that every teacher and administrator would have their own subjective notion of what constitutes profanity,” he said. “The First Amendment rights of their students would be tied to that rather than the Constitution.”

He added that if schools can censor a message just because “it causes someone to feel offended” or because officials deem it “inappropriate,” it could lead to officials banning other strong messages, like religiously motivated ones.

Ernie Walton, faculty director of Regent Law’s Center for Global Justice, said that this case falls in a “gray area” between Tinker’s and Fraser’s guidelines for student speech. “This is sort of in the middle of those two key principles,” Walton said.

Walton noted that the Supreme Court recently declined to hear a case that could have advanced similar speech protections. In May, the high court rejected an appeal from a Massachusetts student challenging his school’s ban of a shirt that said there are “only two genders.”

But Thomas Berg, a professor at the University of St. Thomas School of Law, said that the rights at stake in the Michigan and Massachusetts cases differ because the “two genders” shirt included no reference to profanity.

Berg said that he would be surprised if the 6th Circuit rules in favor of the Michigan students—the standard for vulgarity includes whether the speech can be reasonably interpreted as profane or not, he said. Berg expects that the judges will want to give school officials some discretion to reasonably regulate euphemisms like these.

“If you don’t give officials some discretion to reasonably regard something as including a profanity, then that will leave the door open for a lot of sort of smart aleck activity by high school kids,” he said.