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).
The First Amendment does not prohibit or limit any person’s freedom of speech. If any person’s speech can be prohibited or limited than government can directly affect our ability to speak out against our government.
Our founding fathers understood the importance our inalienable right of free speech is to the freedom of The People. They wisely chose not to allow any type of prohibition or limitation of this core inalienable right.
In the unanimous opinion of the Supreme Court in Ex Parte Milligan the Justices made clear the importance of each safeguard of our Constitutional.
“they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.”
The Judge in this case, as Judges in other cases regarding the freedom of speech, has disturbed one of the safeguards of our Constitution.
“The First Amendment does not prohibit or limit any person’s freedom of speech.”
Try sharing military secrets with people with no clearance. You’ll find yourself sitting in a supermax prison, poor baby.
You may be unfamiliar with the First Amendment, which states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
What part of that gives government the power to prohibit ANY speech? I see none.
“Try sharing military secrets..”
Are you really a spastic idiot, or do you just pretend to not know the difference between speech and conduct??
Try that low IQ gaslighting on your friends. That turd dont float here.
Generally to be improsoned for “sharing military secrets” you must either
Have legitimate access to those secrets, have contracted not to provide them to others knowing the penalties you are subject to or
obtained those secrets by violating the law.
New York Times v. United States (1971) – aka Pentagon papers established that even if you possess and share military secrets – so long as you did not illegally obtain them – your are free to posses and publish them.
Put differently you must either voluntarily waive your right to free speech with respect to classified documents in order to have access to them OR
you must otherwise violate the law – bribery, blackmail, in order to be prosecuted for “sharing military secrets”.
This would have been an issue inm the FL Classified docs case had it not been dismissed – and had the 11th cir ct of appeals not screwed up it would have been resolved earlier.
The government ceded early on that Trump came into possession of the documents legally.
If you are president – your can not violate the espionage act.
If you are NOT president but posses classified documents that you have NOT obtained illegally – you CAN NOT violate the espionage act.
And this ignores the PRA which in order to be coinstitutional allows the president to convert any WH information into personal property.
While the case has all kinds of complications – it was still ALWAYS a dead bang loser.
Turley has tried to argue that there was some duty to cooperate or to return them. Neither is true.
WaPo and NYT were not required to return the pentagon papers.
While the US government got its pound of Flesh From Julian Asange, it has NEVER tried to claim that Wikileaks was obligated to return the classified Afghan documents. Only that asange ilegally assisted Manning in removing them from Government posession by telling Manning were to find instructions to make a USB Boot Stick with Linux on that provides full access to a secure windows computer.
Regardless the mere possession of classified documents that YOU have legally obtained is not only legal, but you are not required to return them.
The Trump case is unusual in that it is one of very few means by which large numbers of still classified documents can be legally obtained.
I would note in the Trump case the issue is NOT who received and posses the documents, but How the got there.
So long as that was legal the entire case collapses.
The documents could have been shipped to WaPo or some homeless person on the street.
So long as they were not illegally transfered – and Jack Smith ceded they were not.
Not only was the case over, But the documents are effectively declassified and can be published.
Once again, the legal system is imposing a standard that incrementally diminishes and deteriorates constitutional rights. Using the pretext of controlling unreasonable speech of minors in the school system (aka indoctrination factories) the educational and legal illuminati see themselves as the arbiters of what is reasonable for young minds they intend to mold with certain outcomes! As noted in the article, controversial language that supports “progressive issues” is just fine and encouraged as enlightened expression but cross the preferred line established by these illuminati and feel their wrath! Any wonder the legal and educational systems are increasingly seen as socialist tools that chisel away at true democracy as envisioned by the founders? Hopefully these cases are eventually addressed by Originalist Jurists!
These are people who cannot be taken seriously. They put their emotions before the law, principles, and even common sense. And if you allow one like pride hoodies, then you have to allow others. What they are teaching is not tolerance but intolerance and the force of a police state against it’s citizens.
Bemoaning intolerance with your intolerance. Constipation?
The Supreme Court settled this in the 1969 Tinker decision saying a student doesn’t leave his First Amendment right to free speech at the school door.
The judge in this case is blatantly wrong.
I would agree with Faceinacab. If anything this was a means of expressing disapproval in a delightful way without actually using foul language. It was the MSM that coined the phrase and they were trying to avoid the foul language as well as not acknowledge the disapproval of the crowd. This is such a mild statement that I can see no rational reason to have banned it. I suspect that the offended teacher is the one who brought the complaint and I would also suspect that she is a member of the NEA and we know how conservative they are.
And then we see who appointed this judge to the federal bench. George W. Bush. If he, Reagan, and H.W. Bush had been more careful about their appointments to the federal bench we might have been able to blunt this aggressive move into progressive theory and practice.
A lot of our difficulties today are because Republican office holders in the Presidency were not careful in their judicial picks. Harriet Miers for the Supreme Court, remember???
Truly the first time I heard a president make judicial picks a hallmark of his campaign was Donald Trump, a non politician.
What about a shirt with the saying, “Let’s Go Andrew”? Andrew Buikema was the school assistant principal who demanded the student remove his shirts. That saying could be interpreted as either support for, or a slur against, assistant principal Buikema. It appears that the goal of the speech police is no speech at all.
If we can have queer flags flying at schools then there can be no ban on other speech. Hypocrisy is blatant on the left.
Leftists are hypocritical, snowflake bullies who love to ridicule but detest being ridiculed.Straight out of the ol’ commie playbook.
If we don’t believe SCOTUS wouldn’t overturn this decision, we are in worse shape in this country than we think. The obvious solution for schools is to ban all graphics on clothing – problem solved for both ends of the political spectrum. Texas requires uniforms in public school so addresses economic disparity along with political expression.
Hear, hear!
“The obvious solution for schools is to ban all graphics on clothing – problem solved for both ends of the political spectrum.”
Not really. The color red can be interpreted as supporting Republicans and their agenda, and the color blue the same for Democrats. Pink and purple are frequently considered to evince support for women’s issues and/or LBGTQ (etc) rights. Of course, in our polarized society, support for one side of any social or political issue can almost invariably be equated to pejorative (potentially profane) dismissal and condemnation of the opposite point of view. So if you eliminated characters or graphics from clothing, it would not be enough to achieve the authoritarian goal of these people to stifle expression of any idea of which they might not approve. I would also like to mention a point that Turley neglected to address directly. The school district and this asinine judge have preemptively usurped the free speech rights of anyone who might be a fan of the real Brandon Brown, or of anyone else named Brandon, from showing their support for that person.
I hope they appeal it!
Disgraceful, but certainly not a surprise.
OT: The Trump campaign should immediately make a tv Ad juxtaposing a photo/video of illegals trying to board a school bus (Jamul, San Diego County, California) with the famous video of Kamala asking “Who doesn’t love a yellow school bus?! Raise your hand if you love a yellow school bus!”!!!!!”
I wonder if Brandon was the name of a star player on the football or softball team if the school could ban the crowd from chanting “Let go Brandon” ?
The high school in the town I live in has a really good star basketball player named Brandon. He’s good enough to have been recruited and offered scholarships to attend a few colleges after he graduates this year.
After the phrase “Let’s go, Brandon!” had become a cultural phenomenon, some students got the idea to put “Let’s go, Brandon!” bumper stickers on the vehicles they drive to school.
Some school board members and administrators received complaints about the stickers and the board made it an issue item at one of its meetings. But they did not try to force the kids to remove the stickers.
I try to go to most of the home games. Knowing the double-entendre nature of the phrase at it applies in this specific case, it was funny walking through the parking lot last year and see the “Let’s go, Brandon!” stickers on the cars.
I wonder if the phrase was “Hamas says, Let’s go Brandon”, what would the decision be?
Oddly, I didn’t know that’s what ‘let’s go Brandon’ meant. I interpreted it as just making fun of Biden in some way (there’s many ways, of course..). It sounds like the judge kinda stepped out of bounds here. I wonder if this had been a similar situation, only w/ Trump, would the judge have made the same decision? Or would the school even be bothered by it? Most indications point to a huge No…..(so unbiased, and non-oppressive).
I am not terribly concerned about high schools regulating content in this manner. There is a strong tendency for high school students to be provocative and often a decision has to be made by the administration, on the spot, as to how to handle the situation. The purpose of this was, without a doubt, more about causing a disruption in class, than in making a political statement. I think Howard Stern said something to the effect of, high school is about as close to prison as most people will ever get…Many schools have adopted dress codes, in part, to avoid this type of problem.
This also differs, slightly, from a gay pride rainbow (although I think that should warrant the same “provocative” standard for removal, but I doubt it would), a BLM fist, or a “Free Gaza” t-shirt. It’s a very close call, but one that I think has to stay within the power of the school administration. Even if, as I am sure, they were all too happy to remove an anti-Joe Biden slogan. I’d like to run a test to see if a similar, remotely obscene, anti-Trump slogan would have resulted in the same treatment. All in all, IMHO, a close call but I don’t believe this is a 1st Amendment hill anyone needs to die upon.
Once again the School Governing Board, the Federal Court and in particular this Judge has exercised their “Right” to control speech even if it is a “joke”. Let’s Go Brandon is and was meant as a joke toward the MSM for twisting the words of Thousands at a NASCAR event. It is far from obscene and profane. The obvious oversensitivity of these party members is a direct violation of the Constitution! Sadly I am afraid even the majority on SCOTUS are of the same opinion…..
In the kid’s position, I would tell Judge Mahiney to go to heck.
Like a majority of judges today, Maloney starts with the decision he wants to issue and then works his way backwards to justify it.
“Who Is Running The Country?”: Biden On The Beach For TWO WEEKS
He’s completely checked out
Joe Biden has been on holiday for a week in Santa Barbara, California. Now he has returned to Delaware… for another NINE DAY holiday, prompting Americans to ask again “who is running the country?”
The guy is just gone.
By: Steve Watson ~ August 29th 2024
https://modernity.news/2024/08/29/who-is-running-the-country-biden-on-the-beach-for-two-weeks/
Hunter Biden tax trial set to begin with jury selection Sept. 5
Hunter Biden, who was convicted on gun-purchasing charges in June, is accused of failing to to pay at least $1.4 million in federal taxes from 2016 to 2019.
LOS ANGELES — Lawyers for Hunter Biden sparred with prosecutors in federal court here Wednesday over what evidence should be allowed in his tax trial next month, giving a glimpse into what sordid details could be revealed about the lavish spending and sex life of the president’s son while he was addicted to drugs.
Sign up for Fact Checker, our weekly review of what’s true, false or in-between in politics.
The trial is scheduled to begin with jury selection on Sept. 5 and opening statements on Sept. 9, U.S. District Judge Mark Scarsi said.
By: Jessica P. Ogilvie and Perry Stein ~ August 21st, 2024
https://www.washingtonpost.com/national-security/2024/08/21/hunter-biden-tax-trial-hearing/
Why Hunter Biden’s Last-Ditch Challenge Failed to Derail His Tax Case
David Weiss’s special-counsel appointment has always been a charade, but that doesn’t make it illegal or unconstitutional.
By: Andrew C. McCarthy ~ August 24, 2024 6:30 AM
[Link] nationalreview.com/2024/08/why-hunter-bidens-last-ditch-challenge-failed-to-derail-his-tax-case/
“Who Is Running The Country?”
The very same unelected cabal that has been running it since January 21, 2021. Nothing really new to see here.
I don’t have that much of a problem here, given that Tinker is still good law, as long as the determinations are made across the board, which I am sure they are not
I have a problem with individual school administrators deciding what is “offensive.” In CA, about a year or so ago, a student was expelled for wearing a tee-shirt with an American flag on it, because the school principal decided that it would offend Mexican students. If schools are concerned about clothing that might offend someone, then the solution is to require students to wear a white shirt or blouse with no language, graphics or logos.
I’d be very surprised if this didn’t get overturned on appeal. There’s nothing profane about “Let’s go, Brandon”. It is, rather, a means of avoiding profanity. If one finds it profane, the profanity is in the ears of the hearer, not the speaker, in which case, how does one hold the speaker responsible for the perceptions of the hearer?
I think republicans should make all references to Democrats and their candidates…illegal! Democrats are fighting a Civil War….their 2nd.
TIME TO Abolish that party and jail their criminals from across government…by the 1000’s!
Remember Fascist Nazis at least loved their country…Democrats HATE America…that is FACT!
Look up the wikipedia entry for George Wallace and his followers. That’s what you are. MAGA is the polar opposite of Reagan, Goldwater, etc.