First Amendment Doesn’t Quite Cover Students’ ‘Let’s Go Brandon’ Shirts, Says Federal Court

It’s well-established that students still have Constitutional rights, even if some school administrators clearly believe otherwise. But they are limited, especially when on school grounds. There’s a lot of nuance in play. When those nuances are ignored, lawsuits get filed.

There’s plenty of nuance in this case, but not a lot of subtext. We all know what “Let’s Go Brandon” really means. The students in this case knew it too. And that collective knowledge — borne out of a TV broadcaster’s unfortunate attempt to recast the chants of “Fuck Joe Biden” that filled the air as he interviewed NASCAR driver Brandon Brown following his win in Talladega, Alabama — factors heavily into this decision [PDF] issued by a Michigan federal court. (h/t Volokh Conspiracy)

A few months after this poor reporter turned “Let’s Go Brandon” into shorthand for “Fuck Joe Biden,” two students (X.A. and D.A.) were given “Let’s Go Brandon” shirts by their mother as gifts. They both wore these shirts to school. They were both told to remove them. They both complied. In D.A.’s case, he wore another shirt under his “Let’s Go Brandon” sweatshirt with the same phrase on it, resulting in him being sent to the school social worker to get a more acceptable shirt to wear.

Both students were well-aware of the double meaning. Both admitted as much when deposed. Their parents knew what the phrase meant as well. So did the teachers and administrators who ordered the students to remove their shirts. However, the family (all of which are plaintiffs) argued the shirts were political speech, and even if they weren’t, at face value they contained no words that violated school policies against profanity.

The court says this doesn’t matter as much as the plaintiffs want it to. Schools are free to ban profanity from students’ clothing, even when the printed words aren’t actually profanities themselves. It helpfully serves up a selection of similar incidents either the court or the school’s employees had encountered in the past.

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. See, e.g., Mercer v. Harr, No. Civ. A. H-04-3454, 2005 WL 1828581 (S.D. Tex. Aug. 2, 2005) (granting summary judgment in favor of the middle school when the school forbid a student from wearing a shirt that read “Somebody Went to HOOVER DAM And All I Got Was This ‘DAM’ Shirt.”). Defendant Bradford recalled speaking to one student who was wearing a hat that said “Fet’s Luck”. She thought the hat was inappropriate for school because rearranging the first letters of the two words resulted in a lewd message. Defendant Buikema testified that he asked 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?).

Context matters. There’s plenty of it here. No one on either side of this litigation was confused about the real meaning of this phrase. Pretending these three words only mean literally what they say isn’t a credible argument, especially when the plaintiffs themselves have already admitted otherwise.

The phrase means something other than the dictionary definition of the three words. D.A. and X.A. are not enthusiastic supporters of someone named Brandon. Albeit using different words, Let’s Go Brandon, means F*** Joe Biden, a personal insult containing a swear word. Defendants both interpreted the phrase as having a profane meaning. Both D.A. and X.A. thought the phrase was funny because it meant a profanity. When students use language in a school setting that can reasonably be interpreted as inappropriate, courts have permitted schools to discourage students from using that language.

The First Amendment covers some speech by students. It does not, however, cover the shirts that were only allowed to cover the plaintiffs for part of their school day.

In school settings, profanity does not enjoy First Amendment protection. Directing profanity toward a political figure does not transform the utterance to protected speech. Indisputably, the phrase Let’s Go Brandon originated as a profane personal insult directed at President Joe Biden. When Plaintiffs wore sweatshirts bearing the phrase to their middle school, school officials reasonably interpreted the phrase as having a profane meaning. The school officials then enforced the dress code and had Plaintiffs change their attire. The school’s actions did not violate Plaintiffs’ First Amendment rights.

And there it is. Students will either have to deploy phrases administrators haven’t figured out yet or transform other innocuous words into incognito profanities if they want to get away with swearing in school. The school can still ban “Let’s Go Brandon” from its campus without violating the Constitution… or at least until someone brings a better case than this to the same judicial circuit.