By John Fritze, CNN
(CNN) — The Supreme Court on Monday declined to take up a First Amendment appeal from two middle school students who were ordered to remove sweatshirts emblazoned with the words “Let’s Go Brandon,” steering clear of 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 decision that favored the school district.
The phrase “Let’s Go Brandon” became right-wing code for “F**k Joe Biden.” It began at a NASCAR race in 2021 as a crowd chanted the more vulgar phrase but a reporter, interviewing a driver named Brandon Brown, suggested the crowd was instead cheering him on.
The two students, who are brothers — one in eighth grade at the time and the other in sixth — wore the sweatshirts to Tri County Middle School in Michigan in 2022. In separate encounters, a teacher and an assistant principal asked the students, identified only by their initials in court papers, to take the sweatshirts off. The family sued in 2023, alleging violations of the First and Fourteenth Amendments.
A decision in the case, expected next year, would have further defined the free-speech rights of students in school nearly six decades after the Supreme Court allowed students to wear black armbands in protest of the Vietnam War. That landmark ruling, Tinker v. Des Moines, held that students do not lose their First Amendment rights when they enter school.
But there are exceptions to that rule. Schools may prohibit speech that disrupts the classroom, for one. And, in a 1986 precedent that is central to the sweatshirt case, the Supreme Court ruled that schools may prohibit vulgar and offensive language, noting the context.
To demonstrate that lewd speech that may not qualify for protection in the classroom if it comes in “sanitized code, innuendo, and double meaning,” the school district — represented by veteran Supreme Court lawyer Lisa Blatt — relied on some eye-opening examples. The district’s brief included a t-shirt that depicted President Donald Trump clutching several cats with the words “And that’s how you GRAB EM!” in reference to the “Access Hollywood tape,” which captured Trump in 2005 on a hot mic saying he gropes and kisses women.
“Take the number 69. Although on its face it is just a number innocently falling between 68 and 70, many understand it to refer to a sexual position,” the school district told the Supreme Court. “Respondents apologize for the use of offensive language and images in this brief.”
A divided panel of the 6th US 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 Supreme Court ruled in favor of a former high school cheerleader who argued that she could not be punished by her public school for posting a profanity-laced caption on Snapchat when she was off school grounds. The case involving a Pennsylvania teenager was closely watched to see how the court would handle the free speech rights of some 50 million public school children and the concerns of schools over off-campus and online speech that could amount to a disruption of the school’s mission or rise to the level of bullying or threats.
“It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein,” Justice Stephen Breyer, who has since retired, wrote for the court. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Justices reject appeal from church shooter Dylann Roof
The court on Monday also rejected an appeal from Dylann Roof, the South Carolina man who shot and killed nine people in a historically Black church in Charleston more than a decade ago.
Roof was convicted on nine counts of racially motivated hate crimes resulting in death and other crimes in the massacre at the Emanuel African Methodist Episcopal Church. He was sentenced to death two years later and is currently on federal death row at a maximum-security prison in Indiana.
In his latest appeal, Roof argued that the trial court judge, US District Judge Richard Gergel, should have recused from the case because another judge reportedly told an attorney that “Gergel really wants to do it.” Roof’s defense read that statement as an eagerness to convict and sentence that crossed a line into partiality.
The Supreme Court declined to hear an earlier appeal from Roof in 2022. In that case, Roof had asked the justices to decide what to do when a defendant and his attorneys disagreed on whether to present evidence at trial depicting a defendant as mentally ill.
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