FIRE, supported by a wave of prominent organizations and scholars as “friends of the court,” has appealed a district court’s ruling that limited the rights of students to attend middle and high school wearing clothes bearing the “Let’s Go Brandon” political slogan. FIRE is asking a federal appeals court to strike down the decision below and uphold freedom of expression for public school students, and a broad spectrum of free speech advocates and language experts are backing us up.
So what happened? In April 2023, FIRE sued a west Michigan school district and two administrators for preventing two students from wearing “Let’s Go Brandon” sweatshirts. The “Let’s Go Brandon” slogan originated during an October 2021 NASCAR race. After the race, won by Brandon Brown, members of the crowd chanted “Fuck Joe Biden” during Brown’s post-race interview. A commentator remarked that the fans were shouting “Let’s Go Brandon!”
Since then, the presidential campaign of Donald Trump and Republican members of Congress have used the phrase widely, including during Congressional floor speeches, to show their displeasure with the Biden administration. The “Let’s Go Brandon” slogan airs uncensored on broadcast television, national cable news, and broadcast radio for all to hear. In the case on appeal, FIRE’s clients wore their “Let’s Go Brandon” sweatshirts to school to express their disapproval of Biden and his administration.
During the lawsuit, the school acknowledged the students did not cause any disruption with their apparel. Yet this past August, the District Court for the Western District of Michigan upheld the school district’s censorship of “Let’s Go Brandon” apparel, holding “Let’s Go Brandon” is legally indistinguishable from “Fuck Joe Biden” and therefore constitutes “profanity.”
As FIRE’s appeal argues, that’s not how speech works. “Heck” is not the same as “hell,” “darn” is not the same as “damn,” and “Let’s Go Brandon” is not the same as “Fuck Joe Biden.” The government may not censor public school students’ political expression absent substantial disruption. Nor may school districts bypass this First Amendment protection by dubbing disfavored political speech “profane.”
This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.
Last week, 18 individuals and organizations, including some of the world’s foremost linguistic experts, joined together to file eight amicus curiae, or “friend of the court” briefs in support of minors’ free speech rights. These briefs urge the Sixth Circuit to recognize what has long been understood outside the courtroom — sanitized expression is, by design, distinguishable from the profane language it replaces:
Linguistic Scholars: Dr. Melissa Mohr, Dr. Rebecca Roache, Professor Timothy Jay, Professor John H. McWhorter, and Professor Steven Pinker are internationally recognized linguistic scholars whose works focus on the history, psychology, and sociology of swearing. Each has written extensively on how language works and the role it continues to play in society. Together, they submitted a brief through Quinn Emanuel Urquhart & Sullivan, LLP, helpfully delineating the different types of “sanitized expression,” including euphemisms like “Let’s Go Brandon,” and describing their ubiquity and importance in political discourse. As they state at the beginning of their brief: “This case is not about swearing; it is about not swearing.”
First Amendment Scholars: Dean Erwin Chemerinsky, Professor Clay Calvert, Professor Roy Gutterman, Professor Mary-Rose Papandrea, and Professor Joseph A. Tomain submitted an amicus brief through Cornell Law School’s First Amendment Clinic and attorney Michael Grygiel. Drawing on decades of study, the scholars methodically apply seminal First Amendment decisions to this particular case. Their brief argues: “the lower court failed to apply Tinker’s ‘substantial disruption’ test, as required when schools seek to prohibit student expression within the school environment that communicates a political message,” and thus “departed from longstanding public student constitutional free speech principles.”
Liberty Justice Center: The Liberty Justice Center’s amicus brief asserts the district court’s decision represents an unprecedented expansion of “profanity” and is part of a nationwide increase in political censorship. The brief describes how “censorship of entirely mainstream political discourse has become all too common around the country” and school authorities increasingly seek to restrict free expression. The LJC argues that the district court’s opinion exacerbates this growing problem, by authorizing schools to treat “every euphemism . . . as the equivalent of its reference.”
Dhillon Law Group, Young America’s Foundation, and Hamilton Lincoln Law Institute: These organizations submitted an amicus brief asserting the lower court’s failed to properly apply Tinker and its progeny to the students’ “Let’s Go Brandon” sweatshirts, which likewise represented political, non-profane student speech. Through careful analysis of First Amendment doctrine, their brief explains that the “district court erred in disregarding the political nature of appellants’ ‘Let’s Go Brandon’ apparel” and undervaluing the importance of First Amendment protections in K-12 public schools.
National Coalition Against Censorship: The National Coalition Against Censorship submitted an amicus brief through Covington & Burling LLP to challenge the district court’s categorization of “Let’s Go Brandon” as unprotected “profane” expression. The brief argues that the “district court’s analysis would create a new, ill-defined category of ‘euphemistic’ profanity,” and “give school officials wide latitude to silence viewpoints they find objectionable, a result at odds with existing First Amendment doctrine.” The brief asserts that the lower court’s decision “represents a serious departure from our nation’s historical commitment to protecting political speech” and urges the Sixth Circuit to reverse.
Manhattan Institute: The Manhattan Institute’s amicus brief emphasizes the critical importance of preserving free speech rights in K-12 public schools, where students develop the skills necessary to productively engage in democratic society. The brief describes case law reflecting the importance of these freedoms in primary and secondary schools — and argues the district court’s opinion fails to “accurately reflect this understanding.”
Parents Defending Education: Parents Defending Education submitted an amicus brief through Consovoy McCarthy PLLC arguing that the district court’s decision cannot be reconciled with First Amendment principles. The brief emphasizes how the school codes at issue in this case are part of a growing and concerning “trend of schools adopting speech codes prohibiting controversial speech.” And the brief asserts each of the cases relied on by the lower court are distinguishable.
Buckeye Institute: The Buckeye Institute’s amicus brief contends that under established First Amendment doctrine, “[r]egulation of speech under the First Amendment should constitute a rare exception.” Yet, they argue, the Michigan school district, motivated by desire to censor what it deems undesirable speech, disregarded that doctrine in order to censor non-disruptive political speech “that does not fall within one of the Supreme Court’s approved exceptions” to the First Amendment’s protection.
Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.
