Let’s Go Brandon” was the message on the sweatshirts two siblings wore to middle school. Everyone knows what that phrase means – including their teachers, so the school required the boys to change clothes. That left their mother unhappy; she sued the school for silencing her kids.
This week, a divided Sixth Circuit panel sided with the school. Judge Nalbandian had the majority opinion, which Judge Moore joined, and Judge Bush dissented. This decision marks an important contribution to the student-speech cases, at a time when like cases continue to arise.
Beginning with Tinker—the famous case of students wearing armbands to protest the Vietnam War—the court explained that students’ at-school speech rights are not equal to their extracurricular rights. For example, under Fraser, public schools can punish vulgarity to advance their pedagogical missions in ways that police officers in public cannot. The court asked first whether “Let’s Go Brandon” qualifies as “vulgar” and, second, whether schools may silence vulgar political speech.
All agreed that students have no right to use or display the F-word at school, but “Let’s Go Brandon” is not itself vulgar. Rather, the phrase is a euphemism standing in for a foul word. The majority decided that “a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.” The message, not the words, inform the inquiry – plus a dose of judicial “deference” to school administrators’ judgment. The euphemism, then, was vulgar enough to restrict.
But was it too political to restrict? After all, political discourse is the Free Speech Clause’s core concern. No, the majority answered, because the “vulgarity trumps the political aspect of speech at school.” And with that, the court concluded the school reasonably exercised its power to “categorically prohibit” vulgar speech.
Judge Bush disagreed: “The liberty to criticize the president is not a freedom that stops at the schoolhouse door.” “Let’s Go Brandon,” Judge Bush reasoned, is non-vulgar, “purely political speech,” a “cheekily expressed criticism” of the then-sitting president. Judge Bush characteristically reasoned from history, highlighting vignettes from the past such as President John Adams’ mocking nickname, “His Rotundity.”
It followed that the Tinker standard should apply, not Fraser’s vulgarity exception to that standard. And Tinker requires the school to show disruption to limit speech, a condition absent from this case. The majority and dissent squabbled over a doctrinal point of real-world import. If Fraser’s vulgarity exception erases Tinker’s disruption requirement, then “who decides” what’s vulgar? To the majority, deference to administrators is in order, provided they act in good-faith (i.e., viewpoint neutral); but in Judge Bush’s dissenting view, discretion tempts censorship, so political speech traditions require “exceptions to Tinker [to] be construed narrowly and applied cautiously.”
Bright-line principles elide difficult First Amendment cases like this. And Judge Bush highlighted intra- and inter-circuit tension in the precedents. These points raise the specter of en banc or Supreme Court review. But for now, the panel-majority’s word is last: vulgarity turns on message, not the words that convey it, and school officials, not courts, decide what’s vulgar. At Tri County Middle School in Howard City, Michigan, the meme phrase “Let’s Go Brandon” crosses the line.