I have previously written about D.A. v. Tri-County Area Schools, one of the worst free speech decisions to come out of the appellate courts in years. In this case, the United States Court of Appeals for the Sixth Circuit upheld a school ban on high school students wearing “Let’s Go Brandon!” sweatshirts. Sixth Circuit Judge John Nalbandian was joined by Judge Karen Nelson Moore in a deeply flawed holding that, under the “vulgarity exception,” the action was constitutional. The Supreme Court needs to grant review in this case and reverse this obnoxious decision.
As previously discussed, “Let’s Go Brandon!” has become a similarly unintended political battle cry not just against Biden but also against media bias. 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 wear political apparel supporting other 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.”
The district court showed an equally dismissive view of the free speech rights of these students, including that the phrase could “reasonably be interpreted” as profane. That was upheld by the Sixth Circuit in its 2-1 decision.
Judge John Bush offered an excellent 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….
The Sixth Circuit 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.
FIRE has filed the petition below, and hopefully, the justices will add this case to the docket.
Here is the petition: Petition for Writ of Certiorari – D.A. v. Tri County Area Schools.
* * *
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He is a New York Times best-selling author of “The Indispensable Right: Free Speech in an Age of Rage” and “Rage and the Republic: The Unfinished Story of the American Revolution“.
This article is republished for the Daily Wire with the author’s permission from JonathanTurley.org.
