We previously discussed the case of B.A. v. Tri County Area Schools, where two middle schoolers in Michigan were prevented from wearing “Let’s Go Brandon” sweatshirts. However, a divided panel on the United States Court of Appeals for the Sixth Circuit has ruled that the school district was within its authority to ban the sweatshirts. The decision, in my view, is wrong, and this could prove a viable case for Supreme Court review, assuming that the plaintiffs will not seek an en banc review.
“Let’s Go Brandon!” has become a similarly unintended political battle cry not just against Biden but also against the bias of the media. It derives from an Oct. 2 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. However, other students were allowed to don political apparel with 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.”
Sixth Circuit Judge John Nalbandian was joined by Judge Karen Nelson Moore in holding that, under the “vulgarity exception,” the action was constitutional:
“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.”
In fairness to the majority, courts have been highly deferential to school officials in these areas, particularly in the Sixth Circuit. In Tinker v. Des Moines, the Supreme Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That may be true, but apparently, they can shed their sweatshirts in Michigan.
Judge John Bush offered a spirited dissent, stating:
“[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….”
Judge Bush is correct. The opinion constitutes a significant infringement on the free speech rights of students. I readily admit that I am critical of some past cases, including Morse v. Frederick, 551 U.S. 393 (2007), where the Supreme Court ruled 5-4 that the Juneau-Douglas High School could suspend student Joseph Frederick after he displayed a banner reading “BONG HiTS 4 JESUS” across the street from the school during the 2002 Winter Olympics torch relay. In my view, the courts have honored Tinker largely in the breach in such cases.
This case, however, involves a sweatshirt without a single vulgar term and a clear political message. It reflects a difference in the default position of both sides. The default in close cases for the majority is with the school’s authority to curtail speech, while the default of Judge Bush is with free speech. As Judge Bush noted:
“Because even offensive political speech demands First Amendment protection, it is inappropriate to delegate unfettered discretion to school officials to characterize the phrase “Let’s Go Brandon!” as vulgar and then regulate it outside the bounds of Tinker. The majority essentially gives school administrators boundless discretion—akin to “I know it when I see it,” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)—to redefine facially non-vulgar speech as vulgarity in order to ban it.”
The plaintiffs should appeal this opinion. They have a strong dissent from Judge Bush and a strong free speech case to make either to the full court or the Supreme Court.
Here is the opinion: B.A. v. Tri County Area Schools
I really see absolutely no reason for this ban to continue on any basis. Brandon is no longer holding any elected office so who does it offend? There is no Brandon anymore…the cry babies must cry unless they are in the process of HATING SOMETHING!
Once again, Leftists affirm they are the true fascists…
No do blm, rainbow mafia and anything negative about GEOTUS Trump shirts. It’ll be “no standing” and ok to wear
There is a whole deeper level when using those words that needs to be protected! Those who use those words are directly implicating the main stream media in false reporting and how they manipulate obvious events. Just like the reporter standing in front of a burning house/business saying “The protest is mostly peaceful”; saying or using “Lets Go Brandon” is a reminder that we cannot trust the Corporate Media. In short, saying that is saying, I will not be played/manipulated!
When Laws are applied differently based entirely on the politics of the offender, then you have no Law.
The 9th Circuit already garroted free expression on school campuses in the Morgan Hill California flag t-shirt case. Students were suspended for wearing U.S flag t-shirts–like the one on the pole in front of the school. SCOTUS refused to review. Nobody on the national media including the pseudos on Fox said a word. Never mind the students were minorities (whites) in the school. “Protected classes” never applies to whites even when they are the minority, save some made-up situational excuse based on “gender identity”. It is a missed opportunity for somebody like Ted Cruz to propose a “clear the decks” statute to steamroll this over and say “equal treatment means equal treatment”. BURNING the US flag remains a special protected “free expression” while a man who burned a rainbow flag in Iowa got 15 years in prison. BTW no ACLU came to anyone’s aid in these cases.
It’s simple; ban all logos except school logos from school wear. All this kerfuffle interferes with an atmosphere of learning.
Teach kids how to cope and move on with things they don’t like is another opportunity to learn here.
Today Waving his hands over his head, Bernie Sanders screeched like a madman
“We have a housing crisis!”
He owns 4 homes
“We have health care crisis”
He has free healthcare and supports free healthcare for illegal aliens
“We have massive income and wealth inequality”
He is worth north of $3 Million.
He also claimed that Jeff Bezos owns X
And Mark Zuckerberg is a right wing radical
And the kicker? He never had a real job in his life. Deciding to get into politics at the age of 40 after living off of welfare
No matter which side you are on, be it left or right leaning. I feel school should be the place for learning and not for political score setting. We should avoid corrupting the young minds as this kind of fire once set-up never stops and just keeps on spreading unless dealt when started. Nonetheless, it is a good decision to ban all these type of hoodies.
Teach kids not to over react to things they don’t like. Teach them how to live and let live. That is missing in today’s society. Crying with rage every time you see something you don’t agree with is no way to go through life and it’s un-American. Eye roll and “shesh” or “meh” like a normal person.
The textualists on the Supreme Court have maintained that words mean what they say. This should then be a slam dunk for the students.
THE MANIFEST TENOR
Completely stupid. The text is the law, and the law is the text. That is all. There is no such thing as a “textualist.” A “textualist” is, in fact, a denier. A textualist is a direct and mortal enemy of the law and the country it directs, orders, and rules.
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
________________________________________________________________________________
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Loved the BONGHITS FOR JESUS case. My favorite tee shirt of late has been TRUMP REMINDS ME OF ORANGE FECES. Wildly popular.
Wildly popular . . .
. . . with the low-IQ middle-school crowd.
OldManFromKS,
Well said.
Burn the American flag.
Don’t say, “Let’s go Brandon!”
Leftist fragility. There is exactly nothing vulgar about “Let’s go Brandon,” but they know it’s a conservative phrase, so it has to be censored. A liberal phrase would have been permitted.
Shame on the Sixth Circuit for allowing this official censorship!
It’s not a “conservative phrase”, it’s a slogan used to disguise a vulgar meaning. Everyone knows what the phrase means thanks to it’s popularity on the right.
Don’t blame the left for pointing it out. Blame those on the right for making it well known what it means. “F$%k Joe Biden” is the meaning behind the famous phrase.
You’re very sensitive. It is indeed a conservative phrase, in every possible way. Yes, it “disguises” a vulgar meaning, but so what? So does “gosh darn” and “oh sugar.” Get a grip, man.
CRYBABY ANON!!!
““F$%k Joe Biden” is the meaning behind the famous phrase.”
You need to invest in a dictionary.
The meaning behind the phrase “lets go brandon” is that joe biden was a lousy president and the media were lying enablers.
oldman,
What is the intent of sharing that phrase? It’s clear that Trump supporters use it, but what is the intention for doing so? When the origin of the popular phrase is searched for what are the results? Is is a euphemism for some other insult?
What you don’t let on to is that this isn’t the sort of phrase that Liberals carry on with, so it is moot as to whether a Liberal phrase would be permitted as there doesn’t appear to be an equivalent Liberal phrase expressing unqualified hate.
Were you pained to see Mr. Rogers share a kiddie pool with a Black man? That’s a more typical Liberal message. Many conservatives exploded with rage over seeing that.
“expressing unqualified hate.”
What a stooge.
Take your hyperbole back to your liberal circle jerk. It wont fly here.
You know how you express unqualified hate? Shoot a man in the back on the streets of NYC. Shoot a Presidential candidate in the ear. Shoot a young husband and father in the neck.
Thats a more typical liberal message these days.
“but what is the intention for doing so? “
The answer to your question is in the post immediately above your question.
Do you need it explained more clearly than that?
Does poop mean shlt? When you look up the word poop, does the definition say “shlt”. No. Poop and shlt have the SAME MEANING. They both mean feces.
One is a non vulgar word for the non vulgar feces. The other is a vulgar word for the non vulgar feces.
Do you get it yet??? LGB is a non vulgar way of saying “joe biden was a lousy president and the press was gaslighting us about it”
FJB is a vulgar way of saying the same thing.
The meaning and intent are not vulgar. The work “fvck” is vulgar. Thats the only thing that makes that phrase vulgar. The meaning is.not vulgar.
This is elementary.
FJB doesnt mean “stick your penis in joe bidens rectum”. Thats would be a vulgar meaning.
Do you think thats what it means?
Or is it that you just dont like it?
oldman,
What is the intent of sharing that phrase? It’s clear that Trump supporters use it, but what is the intention for doing so? When the origin of the popular phrase is searched for what are the results? Is is a euphemism for some other insult?
What you don’t let on to is that this isn’t the sort of phrase that Liberals carry on with, so it is moot as to whether a Liberal phrase would be permitted as there doesn’t appear to be an equivalent Liberal phrase expressing unqualified hate.
Were you pained to see Mr. Rogers share a kiddie pool with a Black man? That’s a more typical Liberal message. Many conservatives exploded with rage over seeing that.
A liberal phrase would be mandatory.
Actor Al Pacino plays Frank Vs School Headmaster defending the value of integrity in court.