We previously discussed the case of a student (known as “D.A.”) in Michigan who was ordered to remove his sweater with the popular phrase “Let’s Go, Brandon.” We now have a ruling from U.S. District Judge Paul Maloney in the Western District of Michigan. In D.A. v. Tri County Area Schools. Judge Maloney rejects the free speech claim and rules that school officials can punish a student for wearing a “Let’s Go Brandon” T-shirt. I believe that he is wrong and that the case sets a dangerous precedent.
“Let’s Go Brandon!” has become a familiar political battle cry not just against Biden but also against the bias of the media. It derives from an Oct. 2021 interview with race-car driver Brandon Brown after he won his first NASCAR Xfinity Series race. During the interview, NBC reporter Kelli Stavast’s questions were drowned out by loud-and-clear chants of “F*** Joe Biden.” Stavast quickly and inexplicably declared, “You can hear the chants from the crowd, ‘Let’s go, Brandon!’”
“Let’s Go Brandon!” instantly became a type of “Yankee Doodling” of the political and media establishment.
In this case, an assistant principal (Andrew Buikema) and a teacher (Wendy Bradford) “ordered the boys to remove the sweatshirts” for allegedly breaking the school dress code. In the first such incident, D.A. removed the sweater only to reveal a teeshirt underneath with the same slogan. He was then told to go get a teeshirt from a school official to remove both clothing items.
The school ordered the removal of the clothing as obscene and in violation of the school code. However, other students are allowed to don political apparel supporting other political causes including “gay-pride-themed hoodies.”
The district dress code states the following:
“Students and parents have the right to determine a student’s dress, except when the school administration determines a student’s dress is in conflict with state policy, is a danger to the students’ health and safety, is obscene, is disruptive to the teaching and/or learning environment by calling undue attention to oneself. The dress code may be enforced by any staff member.”
The district reserves the right to bar any clothing “with messages or illustrations that are lewd, indecent, vulgar, or profane, or that advertise any product or service not permitted by law to minors.”
The funny thing about this action is that the slogan is not profane. To the contrary, it substitutes non-profane words for profane words. Nevertheless, “D.A.” was stopped in the hall by Buikema and told that his “Let’s Go Brandon” sweatshirt was equivalent to “the f–word.”
Judge Maloney ruled that:
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 does not explain what will constitute a “reasonable interpretation” of non-profane words as profane. It is not clear if the same result would be reached by an agreement among students as to the hidden meaning of some other common expression akin to the code of “as you wish” in The Princess Bride. Judge Maloney seems to think that, so long as there is a profane meaning for some, there is a right to bar the expression.
Judge Maloney offers a tip of the hat to free speech before eviscerating its protection:
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.
The court’s narrow view of the content of this speech is, for me, jarring and chilling. The “Let’s Go Brandon” slogan is more than just a substitute for profanity directed at the President (which itself has political content). It is using satire to denounce the press that often acts like a state media. It is commentary on the alliance between the government and the media in shaping what the public sees and hears.
Judge Maloney relied heavily on the Court’s 1986 decision in Bethel School Dist. No. 403 v. Fraser which dealt with a nomination speech of student Matthew Fraser for a friend running for high school vice-president. The speech made juvenile illusions to sex like “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.”
The Court ruled that “it is a highly appropriate function of a public school education to prohibit the use of vulgar and offensive terms in public discourse.” It added 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[.].”
The Plaintiffs accepted that the school could prohibit a sweatshirt reading “F**k Joe Biden.” While the Court had found that “F**k the Draft” was protected for adults in Cohen v. California, it ruled that schools are different and stated 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.”) (citing Thomas v. Bd. of Educ., Grandville Cent. Sch. Dist., 607 F.2d 1043, 1057 (2d Cir. 1979)).
However, the Plaintiffs cited other lower court decisions striking a balance in such cases. For example, in B.H. v. Easton Area School Dist. the Third Circuit in a similar case ruled 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.
This was obviously commenting on a political or social issue, but the court declined to follow the ruling from another circuit on the question.
I disagree with the decision as sweeping too far into the regulation of political speech. Notably, politicians have used the phrase, including members of the House of Representatives despite a rule barring profanity on the floor. On October 21, 2021, Republican congressman Bill Posey concluded his remarks with “Let’s go, Brandon.” It was not declared a violation of the House rules.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I criticize what I refer to as “functionalist” interpretations of free speech that have allowed endless trade offs in barring or allowing speech. By protecting speech for its positive function in society, it allows for greater censoring of low-value as opposed to high-value speech.
My view of free speech as a human right is not absolute and I recognize the need for schools to maintain civil discourse. However, the decision by Judge Maloney reflects the slippery slope of functionalism in more narrowly defining the protection of free speech. The default of Judge Maloney is to limit speech even when it is not overtly profane and concerns a major political controversy.
In my view, the school is engaged in unconstitutional speech regulation under a vague and arbitrary standard. The discretionary authority recognized by Judge Maloney sweeps too deeply into protected speech for high school students and offers little clarity on what is permissible political commentary.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
