A federal appellate court has upheld a ban on “Let’s Go Brandon” apparel in Michigan schools, ruling the phrase can be interpreted as profane and thus subject to school dress codes that prohibit disruptive or vulgar clothing.

The United States Court of Appeals for the Sixth Circuit recently delivered a verdict in the case of B.A. v. Tri County Area Schools, upholding the district court’s decision that school authorities did not infringe on students’ First Amendment rights by banning certain clothing. This case involved two middle school students in Howard City, Michigan, who were asked to remove sweatshirts featuring the phrase “Let’s Go Brandon,” widely recognized as a veiled expression for “F*** Joe Biden.”

This slogan traces its roots back to a 2021 NASCAR event when NBC reporter Kelli Stavast mistakenly interpreted chants of “F*** Joe Biden” as “Let’s go Brandon.” This error spawned a politically loaded meme often used as a form of explicit criticism against President Biden’s administration.

The judicial panel, which included Judges John Nalbandian and Karen Nelson Moore, concluded that just as schools can prohibit clothing with explicit profanity, they can also restrict attire that “can reasonably be interpreted as profane.” The court pointed out that other political attire, like “Make America Great Again” hats, remained permissible, indicating that the restriction was aimed at curbing vulgarity, not political discourse.

Judge Nalbandian asserted, “Because Defendants reasonably interpreted the phrase as having a profane meaning, the School District can regulate the wearing of ‘Let’s Go Brandon’ apparel during school without needing to demonstrate interference or disruption at the school.” This decision highlights the schools’ right to ensure an environment that is free from potentially disruptive or disrespectful speech.

In contrast, Judge John K. Bush issued a strong dissent. He contended that the phrase represented “purely political speech” and would have overturned the decision, stressing that the clothing in question did not lead to any disturbance within the school setting. Bush warned that censoring political speech on the grounds of offense could jeopardize First Amendment rights:

[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.” 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. 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.” And it was up to the school to determine “what manner of speech in the classroom or in school assembly is inappropriate.” 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.”

However, Judge John K. Bush strongly dissented from the majority opinion. He argued that the phrase was “purely political speech” and said he would have reversed the decision, emphasizing that the worn apparel did not cause any disruption in the school environment. Bush cautioned that suppressing political speech due to its offensive nature poses a threat to First Amendment protections:

“[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 students’ mother had challenged the ban, asserting it infringed on her children’s constitutional rights, particularly freedom of expression. The school district countered that the dress code’s prohibition against “messages or illustrations that are lewd, indecent, vulgar, or profane” gave administrators ample grounds to act.

The decision to uphold the ban on “Let’s Go Brandon” shirts is a direct assault on the fundamental right of free speech, which must be absolute, especially in a country built on such principles. Political speech, no matter how provocative or offensive to some, is protected and essential to all discourse.