The First Amendment, students, and memes: Leaving symbolism to school administrators.

The Sixth Circuit Court of Appeals recently handed down its decision that a school may prohibit students from wearing a slogan that they subjectively and reasonably interpret to be profane or vulgar, irrespective of disruption or lack thereof to the school environment. The decision limits the First Amendment rights of students by the subjective sensibilities of schools.  The majority and dissenting opinions present interesting takes on First Amendment jurisprudence and modern day linguistics.

“On October 2, 2021, Brandon Brown, a professional race car driver, scored his first major win at the Sparks 300, a NASCAR Xfinity Series race, at the Talladega Superspeedway in Alabama.  But it was what happened afterward that propelled his name into the national consciousness.  During a post-race interview with Brandon, the crowd began to audibly chant the phrase ‘Fuck Joe Biden.’  As the chant increased in volume, NBC Sports reporter Kelli Stavast interjected on live TV: ‘You can hear the chants from the crowd, “Let’s Go Brandon.”’  While it is unclear whether Stavast had misheard the crowd or whether she was simply trying to put a fig leaf over the chant’s vulgarity, the damage was done. The clear disconnect between what the crowd was chanting and what Stavast had claimed caused the clip and its audio to proliferate.  The phrase ‘Let’s Go Brandon’ became, for lack of a better term, a meme.  

“From the beginning, the expression had a wide range of meanings. Some saw it as merely a euphemism for what the crowd really said. Others used it as a shibboleth to express antipathy towards the then-President and his policies. And still others used it to question what they perceived as liberal bias in the media—based on the theory that NBC had been trying to hide the anti-Biden sentiment on display at Talladega. In any event, the phrase ‘Let’s Go Brandon’ quickly entered common usage, appearing in broadcast television, the Congressional record, and even President Biden’s NORAD Santa tracker call-in on C-SPAN. And the phrase continued to evolve. . . .”     B.A. v. Tri County Area Schools, United States Court of Appeals, No. 24-1769 (6th Cir. Oct. 14, 2025).

Eventually, “[t]wo middle schoolers in Michigan wore sweatshirts emblazoned with the phrase ‘Let’s Go Brandon’ to school.  Based on the commonly understood meaning of the slogan, the school administrators determined that the sweatshirts were inappropriate for the school environment.  They asked the students to remove the sweatshirts, and fearing punishment, the students complied.  But they still wanted to wear the sweatshirts at school to express their disapproval of then-President Joe Biden’s administration and its policies.  So, through their mother, the students sued the school district and several school administrators, alleging that the school deprived them of their First Amendment rights.  The district court sided with the school district, concluding that the school could reasonably prohibit the sweatshirts since they were vulgar speech.  Because the school reasonably understood the slogan ‘Let’s Go Brandon’ to be vulgar, [the Sixth Circuit Court of Appeals] affirm[ed].”  B.A. v. Tri County Area Schools, United States Court of Appeals, No. 24-1769 (6th Cir. Oct. 14, 2025).

“Our Constitution provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’  U.S. Const. amend. I.  And this limitation also binds state and local governments through the Fourteenth Amendment. Free Speech Coal., Inc. v. Paxton, 145 S. Ct. 2291, 2302 (2025).  Public schools, ‘like all government institutions,’ may not ignore the strictures of the First Amendment.  See Mahmoud v. Taylor, 145 S. Ct. 2332, 2350 (2025). So, as ‘a general matter,’ the ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’  Paxton, 145 S. Ct. at 2302 (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).  But still, ‘not all speech is protected.’  Id.  And a school’s ‘special characteristics’ give it ‘additional license to regulate student speech.’  Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 188 (2021).

“Of course, students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).  But those retained rights ‘are not automatically coextensive with the rights of adults in other settings.’  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).  Under Tinker, schools can generally forbid or punish student speech that causes a ‘substantial disruption of or material interference with school activities.’  Tinker, 393 U.S. at 514.  But the Supreme Court has recognized several exceptions to Tinker’s standard.  On school grounds, a school may generally prohibit (1) indecent, lewd, and vulgar speech; (2) speech that promotes illegal drug use; and (3) speech that others may reasonably perceive as bearing the imprimatur of the school.  Mahanoy, 594 U.S. at 187–88 (2021).  Without one of these exceptions, the Tinker standard applies and the school has the burden of showing that it reasonably believes its regulation of student speech will prevent substantial and material interference with school functions.  Barr v. Lafon, 538 F.3d 554, 564 (6th Cir. 2008).

“This case is about the vulgarity exception. And specifically, how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message.  To answer that, we must resolve two preliminary questions. The first is linguistic, asking whether a phrase that lacks explicitly profane words might still have a vulgar meaning.  The second is doctrinal, asking whether a school administrator may prohibit student political speech that has a vulgar message.  The district court answered yes to both and so held that the plaintiffs hadn’t suffered any constitutional deprivation because the school administrators’ actions comported with the First Amendment.  For the reasons given below, we agree.

“The question of what is vulgar or profane can depend on the individual.  To paraphrase the late George Carlin, everybody has a list of words that they consider profane—but the contents of that list vary greatly from person to person. In answering whether a jacket emblazoned with the words ‘Fuck the Draft’ deserved constitutional protection, the Supreme Court noted that it’s ‘often true that one man’s vulgarity is another’s lyric.’  Cohen v. California, 403 U.S. 15, 25 (1971).  So this high degree of subjectivity means that what is profane often hinges on who decides.  And in related contexts, the Supreme Court has said that the question of who decides should be evaluated in a manner ‘consistent with our oft-expressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges.’  Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

“The Constitution doesn’t hamstring school administrators when they are trying to limit profanity and vulgarity in the classroom during school hours.  Again, students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’  Tinker, 393 U.S. at 506.  But neither are school administrators powerless to prevent student speech that the administrators reasonably understand to be profane or vulgar.  Fraser, 478 U.S. at 683.  And so ‘the First Amendment gives a . . . student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.’  Id. at 682 (quoting Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J. concurring in the result)).  Schools are charged with teaching students the ‘fundamental values necessary to the maintenance of a democratic political system.’  Id. at 681 (quoting Ambach v. Norwick, 441 U.S. 68, 77 (1979)).  And avoiding ‘vulgar and offensive terms in public discourse’ is one such value.  Id. at 683.  After all, ‘[e]ven the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.’  Id. at 681. . . .

“[A] euphemism is not the same as the explicitly vulgar or profane word it replaces.  ‘Heck’ is not literally the same word as ‘Hell.’  But the word’s communicative content is the same even if the speaker takes some steps to obscure the offensive word.  The plaintiffs concede that a school could prohibit students from saying ‘Fuck Joe Biden’ because ‘[k]ids can’t say “fuck” at school.’  Id. at 20.  And yet they insist that the euphemism ‘Let’s Go Brandon’ is distinct—even though many people understand that slogan to mean ‘Fuck Joe Biden.’  So it’s not clear that the school administrators acted unreasonably in determining that the euphemism still conveyed that vulgar message.

“After all, Fraser—the first case that recognized the vulgarity exception—involved a school assembly speech that had a rather elaborate sexual metaphor instead of explicitly vulgar or obscene words.[1]  And yet the Supreme Court had no reservation in holding that the school was not required to tolerate ‘lewd, indecent, or offensive speech and conduct.’  Fraser, 478 U.S. at 683.  And it was up to the school to determine ‘what manner of speech in the classroom or in school assembly is inappropriate.’  Id.  Because ‘[t]he pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed to any mature person,’ the school could discipline his speech despite the absence of explicitly obscene or vulgar words.  And so Fraser demonstrates that a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.”   B.A. v. Tri County Area Schools, United States Court of Appeals, No. 24-1769 (6th Cir. Oct. 14, 2025).

In sum, the Sixth Circuit majority “leave[s] it to the school to decide what is vulgar or profane so long as the decision is not unreasonable.”  B.A. v. Tri County Area Schools, United States Court of Appeals, No. 24-1769 (6th Cir. Oct. 14, 2025).

Judge John Bush writes a foreboding dissent.

“For a young person, wearing apparel with a political message can be the first point of entry to civic engagement.  One mother thought so when she gave her two sons sweatshirts bearing a political message—‘Let’s Go Brandon!’—as Christmas presents.  The phrase was a popular way for critics to express opposition to President Joe Biden’s policies.  But when the students tried to wear their sweatshirts to protest the presidential administration, the school administration quickly ended their civic engagement.

“The majority blesses this outcome without requiring that the school district meet the legal standard of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  In Tinker, the Supreme Court held that students had a First Amendment right to wear black armbands to school in protest of President Lyndon Johnson’s Vietnam War policies.  Under Tinker, student political speech may not be restricted in school unless the speech ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school’ or might ‘reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.’  Id. at 509, 514.

“Discarding the Tinker standard, the majority misapplies a narrow exception to Tinker recognized in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).  There, the Supreme Court upheld a school district’s disciplining of a student who, during a school assembly, gave a sexually explicit speech that had nothing to do with national politics.  Here, the majority concludes that a political slogan critical of a president but containing no words that are vulgar or profane—'Let’s Go Brandon!’—looks more like the sexually explicit, non-political speech delivered in Fraser than it does the political criticism expressed through the black armbands in Tinker.

“In my view, Tinker, not Fraser, should apply. . . .

“To be sure, in a limited category of cases, the explicit nature of the speech is so evident that courts need not apply the Tinker test.  See Fraser, 478 U.S. at 685. But the speech here—“Let’s Go Brandon!”—is neither vulgar nor profane on its face, and therefore does not fall into that 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.”  Morse v. Frederick, 551 U.S. 393, 403 (2007) (quoting Virginia v. Black, 538 U.S. 343, 365 (2003) (plurality opinion)).  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 rifle1—depictions arguably more offensive than ‘Let’s Go Brandon!’

“We are not the only circuit that applies the Tinker standard to arguably offensive political speech.  The majority’s holding to the contrary goes against this consensus and, in so doing, creates at least two circuit splits described below.

“Because even offensive political speech demands First Amendment protection, it is inappropriate to delegate unfettered discretion to school officials to characterize the phrase ‘Let’s Go Brandon!’ as vulgar and then regulate it outside the bounds of Tinker.  The majority essentially gives school administrators boundless discretion—akin to ‘I know it when I see it,’ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)—to redefine facially non-vulgar speech as vulgarity in order to ban it.  And only by interpreting ‘Let’s Go Brandon!’ by its political meaning (as opposed to a non-political meaning, such as, for instance, student speech that cheers achievements of a classmate named Brandon) do the school officials claim authority to censor the message.  If we allow schools the power to censor political speech by recharacterizing it as vulgarity, we risk turning disagreement with political speech into justification for its censorship—something the First Amendment flatly forbids.”  B.A. v. Tri County Area Schools, United States Court of Appeals, No. 24-1769 (6th Cir. Oct. 14, 2025) (J. Bush, dissenting).

[1]                 The entire speech that Matthew Fraser gave to the high school assembly is as follows:

“I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm.

“Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds.

“Jeff is a man who will go to the very end—even the climax for each and every one of you.

So vote for Jeff for A.S.B. vice-president—he’ll never come between you and the best our high school can be.”  Fraser, 478 U.S. at 687 (Brennan, J., concurring in the judgment).