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I have\u00a0previously written<\/span><\/a>\u00a0about D.A. v. Tri-County Area Schools<\/em>, 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 \u201cLet\u2019s Go Brandon!\u201d sweatshirts. Sixth Circuit Judge John Nalbandian was joined by Judge Karen Nelson Moore in a deeply flawed holding that, under the \u201cvulgarity exception,\u201d the action was constitutional. The Supreme Court needs to grant review in this case and reverse this obnoxious decision.<\/p>\n As previously discussed, \u201cLet\u2019s Go Brandon!\u201d 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\u00a0Brandon Brown<\/span><\/a>\u00a0after he won his first NASCAR Xfinity Series race. During the interview, NBC reporter Kelli Stavast\u2019s questions were drowned out by loud and clear chants of \u201cF*** Joe Biden.\u201d Stavast quickly and inexplicably declared, \u201cYou can hear the chants from the crowd, \u2018Let\u2019s go, Brandon!\u2019\u201d<\/p>\n \u201cLet\u2019s Go Brandon!\u201d instantly became a type of\u00a0\u201cYankee Doodling\u201d of the political and media establishment.<\/span><\/a><\/span><\/p>\n In this case, an assistant principal (Andrew Buikema)\u00a0and a teacher (Wendy Bradford)\u00a0\u201cordered the boys to remove the sweatshirts\u201d for allegedly breaking the school dress code. However, other students were allowed to wear political apparel supporting other causes, including \u201cgay-pride-themed hoodies.\u201d<\/p>\n The district dress code states the following:<\/p>\n Students and parents have the right to determine a student\u2019s dress, except when the school administration determines a student\u2019s dress is in conflict with state policy, is a danger to the students\u2019 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.<\/i><\/p>\n<\/blockquote>\n The district reserves the right to bar any\u00a0clothing \u201cwith messages or illustrations that\u00a0are lewd, indecent, vulgar, or profane, or that advertise any product or service not\u00a0permitted by law to minors.\u201d<\/p>\n 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, \u201cD.A.\u201d was stopped in the hall by Buikema and told that his \u201cLet\u2019s Go Brandon!\u201d sweatshirt was equivalent to \u201cthe f\u2013word.\u201d<\/p>\n The district court showed an equally dismissive view of the free speech rights of these students, including that\u00a0the phrase could \u201creasonably be interpreted\u201d as profane. That was upheld by the Sixth Circuit in its 2-1 decision.<\/p>\n Judge John Bush offered an excellent dissent, stating:<\/p>\n [T]he speech here\u2014\u201dLet\u2019s Go Brandon!\u201d\u2014is 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\u2014the type of expression that sits \u201cat the core of what the First Amendment is designed to protect.\u201d 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\u2014depictions arguably more offensive than \u201cLet\u2019s Go Brandon!\u201d \u2026<\/i><\/p>\n The majority says the sweatshirts\u2019 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 \u201cseven words you can never say on television\u201d appears in it . Instead, the phrase has been used to advance political arguments, primarily in opposition to President Biden\u2019s policies and secondarily to complain about the way liberal-biased media treats conservatives. It serves as a coded critique\u2014a 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, \u201cagreed\u201d with the phrase.<\/i><\/p>\n We cannot lose sight of a key fact: the students\u2019 sweatshirts do not say \u201cF*ck Joe Biden.\u201d 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 \u201cLet\u2019s go, Brandon!\u201d She did not report the vulgar phrase that was actually being chanted. The Majority even concedes Stavast may have used the sanitized phrase to \u201cput a fig leaf over the chant\u2019s vulgarity.\u201d That is telling\u2026.<\/i><\/p>\n<\/blockquote>\n 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\u00a0Morse v. Frederick,<\/i>\u00a0551 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 \u201cBONG\u00a0HiTS 4 JESUS\u201d across the street from the school during the\u00a02002 Winter Olympics torch relay. In my view, the courts have honored\u00a0Tinker<\/i>\u00a0largely in the breach in such cases.<\/p>\n FIRE has filed the petition below, and hopefully, the justices will add this case to the docket.<\/p>\n Here is the petition:\u00a0Petition for Writ of Certiorari \u2013 D.A. v. Tri County Area Schools<\/span><\/a>.<\/span><\/p>\n \u00a0* * *<\/p>\n 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 <\/em>New York Times best-selling author of \u201cThe Indispensable Right: Free Speech in an Age of Rage<\/a>\u201d and \u201cRage and the Republic: The Unfinished Story of the American Revolution<\/a>\u201c.\u00a0<\/em><\/p>\n This article is republished for the Daily Wire<\/a> with the author\u2019s permission from JonathanTurley.org.<\/em><\/p>\n<\/div>\n\n
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