Supreme Court rejects First Amendment case that students forced to remove ‘Let’s Go Brandon’ sweatshirts

The Supreme Court on Monday declined to consider a First Amendment appeal filed by two middle school students who were ordered to remove their sweatshirts emblazoned with the words “Let’s Go Brandon,” avoiding a case that could have clarified the power schools have to police potentially offensive speech in the classroom.

By not granting the appeal, the justices left in place an appeals court ruling that favored the school district.

The phrase “Let’s Go Brandon” has become right-wing code for “F**k Joe Biden.” It started at a 2021 NASCAR race as a crowd chanted the most vulgar phrase, but a reporter, interviewing a driver named Brandon Brown, suggested the crowd was cheering him on instead.

The two students, who are brothers — one in eighth grade at the time and the other in sixth grade — wore the sweatshirts at Tri County Middle School in Michigan in 2022. In separate meetings, a teacher and an assistant principal asked the students, identified only by their initials in court documents, to remove the sweatshirts. The family filed a lawsuit in 2023, alleging violations of the First and Fourteenth Amendments.

A ruling in that case, expected next year, would have further defined students’ free speech rights in schools nearly six decades after the Supreme Court allowed students to wear black armbands to protest the Vietnam War. This landmark decision, Tinker v. Des Moines ruled that students do not lose their First Amendment rights when they enter school.

But there are exceptions to this rule. Schools can ban speech that disrupts the class, for example. And, in a 1986 precedent that is at the heart of the sweatshirt case, the Supreme Court ruled that schools can ban vulgar and offensive language, taking into account the context.

To demonstrate obscene speech that may not be protected in the classroom if it occurs in the form of “sanitized code, innuendo and double meaning,” the school district – represented by veteran Supreme Court attorney Lisa Blatt – relied on revealing examples. The district’s filing included a T-shirt depicting President Donald Trump hugging several cats with the words “And that’s how you catch them!” ” in reference to the “Access Hollywood tape,” which captured Trump in 2005 on a hot mic saying he groped and kissed women.

“Take the number 69. Although on the surface it is simply a number innocently falling between 68 and 70, many understand that it refers to a sexual position,” the school district told the Supreme Court. “The respondents apologize for the use of offensive language and images in this memoir.”

A divided panel of the 6th U.S. Circuit Court of Appeals sided with the school district. The family is represented by the Foundation for Individual Rights and Expression.

Five years ago, an 8-1 verdict ruled in favor of a former high school cheerleader who claimed she couldn’t be punished by her public school for posting a crude caption on Snapchat while off school grounds. The case involving a Pennsylvania teenager has been closely watched to see how the court would handle the free speech rights of some 50 million public school children and schools’ concerns about off-campus and online speech that could amount to disruption of the school’s mission or rise to the level of intimidation or threats.

“It might be tempting to dismiss (the student’s) comments as unworthy of the strong First Amendment protections discussed here,” Justice Stephen Breyer, who has since retired, wrote for the court. “But sometimes you have to protect the superfluous to preserve the necessary.”

The court on Monday also rejected an appeal by Dylann Roof, the South Carolina man who fatally shot nine people at a historically black church in Charleston more than a decade ago.

Roof was convicted of nine counts of racially motivated hate crimes resulting in death and other crimes in the Emanuel African Methodist Episcopal Church massacre. He was sentenced to death two years later and is currently on federal death row in a maximum security prison in Indiana.

In his latest appeal, Roof argued that the trial court judge, U.S. District Judge Richard Gergel, should have recused himself from the case because another judge allegedly told a lawyer that “Gergel really wants to do it.” Roof’s defense interpreted this statement as a rush to condemn and condemn that crossed the line into bias.

The Supreme Court declined to hear an earlier appeal from Roof in 2022. In that case, Roof asked the justices to decide what to do when a defendant and his attorneys disagree about whether to present evidence at trial describing a defendant as mentally ill.