Port Allegany School District in Pennsylvania may have violated a student’s First Amendment rights by requiring them to remove clothing with the message “Let’s Go Brandon” based on the school’s policy of prohibiting vulgarity on campus. NCAC has written to school board officials.
The United States Court of Appeals for the Third Circuit, which includes Pennsylvania, has declared that student speech about political or social issues cannot be banned unless it is “plainly lewd.” In B.H. ex rel. Hawk v. Easton Area Sch. Dist., the Court established the following framework:
(1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues
(2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues
(3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.
(725 F.3d at 298)
The “Let’s Go Brandon” message is not “plainly lewd.” Rather, it is “speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd.” It is also clearly a comment on a political issue, given that it is a coded criticism of President Biden. Hence, under B.H. ex rel Hawk, the district is not permitted to categorically ban clothing bearing that slogan from school campuses.
NCAC is urging the district to apologize to the student for violating her First Amendment rights; revise any policy that bans clothing with social or political content in violation of the Third Circuit decision; and inform students and staff that students have the right to engage in that speech on campus, except in narrow circumstances in which doing so would create a risk of substantial disruption of school operations.