Amicus Curiae Brief — D. A., a Minor, By and Through his Mother, B. A., et al., Petitioners v. Tri County Area Schools, et al.

No. 25-1143

───────────────────────────

In the

Supreme Court of the United States

──────────────────────────

D.A., A MINOR, BY AND THROUGH HIS MOTHER, B.A., ET AL.,

Petitioners,

v.

TRI COUNTY AREA SCHOOLS, ET AL.,

Respondents.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

──────────────────────────

AMICUS CURIAE BRIEF OF

THE BUCKEYE INSTITUTE

IN SUPPORT OF PETITIONERS

──────────────────────────

David C. Tryon

Counsel of Record

Alex M. Certo

J. Simon Peter Mizner

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

i

QUESTION PRESENTED

Whether Fraser permits schools to censor

nondisruptive political speech that is not plainly

profane or lewd.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ i

TABLE OF AUTHORITIES........................................ iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF THE ARGUMENT............................. 1

ARGUMENT ................................................................. 4

I. This is an ideal vehicle to provide guidance to

school officials, parents, and students on how

Fraser and Tinker handle nondisruptive

speech that is not plainly profane or lewd ......... 4

II. Students cannot be punished for using profane

language when their language is not profane .... 6

III. Lewd

substitutes

for

profanity

are

unacceptable under Fraser, but non-lewd

substitutes for profanity are protected by the

First Amendment ............................................... 12

IV. The First Amendment protects Petitioners’

political statements ............................................ 14

V. Petitioners’ conduct does not violate the

Tinker standard because it did not create a

disruption ............................................................ 18

CONCLUSION ............................................................ 20

iii

TABLE OF AUTHORITIES

Cases

Ambach v. Norwick,

441 U.S. 68 (1979).................................................... 13

B.H. ex rel. Hawk v. Easton Area Sch. Dist.,

725 F.3d 293 (3d Cir. 2013) ............................ 3, 5, 11

Barr v. Lafon,

538 F.3d 554 (6th Cir. 2008) ................................... 11

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) .....................5, 10, 11, 12, 13, 19

Connick v. Myers,

461 U.S. 138 (1983) ................................................... 4

Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of

Educ., 158 F.4th 732 (6th Cir. 2025) ....................... 4

Defoe ex rel. Defoe v. Spiva,

625 F.3d 324 (6th Cir. 2010) ................................... 19

Guiles ex rel. Guiles v. Marineau,

461 F.3d 320 (2d Cir. 2006) .................................... 11

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ................................................. 10

Mahanoy Area Sch. Dist. v. B. L. by and through

Levy, 594 U.S. 180 (2021).......................... 3, 4, 10, 17

Morse v. Frederick,

551 U.S. 393 (2007) ................................................. 10

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) .................................... 18

iv

Sheets v. Lipker,

No. 2:25-CV-493-KCD-DNF, 2026 WL 265715

(M.D. Fla. Feb. 2, 2026)............................................. 1

Tinker v. Des Moines Indep. Community Sch. Dist.,

393 U.S. 503 (1969) ............................. 5, 6, 10, 18, 19

Statutes

18 U.S.C. § 1464 ...................................................... 7, 18

Other Authorities

Colleen Long, How ‘Let’s Go Brandon’ became code

for insulting Joe Biden, Associated Press (Oct. 30,

2021), https://tinyurl.com/3kp7wuer ...................... 16

Declan McCullagh, FCC Reversal: Eminem Not

Obscene, Wired (Jan. 12, 2002),

https://tinyurl.com/mthhhxmv ................................. 7

Eminem, Without Me, on The Eminem Show (CD,

Aftermath Ent. May 26, 2002) ................................. 7

F***, Cambridge Dictionary,

https://tinyurl.com/yk5h3bfu (last visited Apr. 2,

2026) ......................................................................... 13

Let’s go Brandon: NASCAR driver Brandon Brown

caught in unwinnable culture war, ESPN (Feb 19,

2022), https://tinyurl.com/aeuspb4a................... 2, 13

Marc A. Thiessen, Three cheers for ‘Let’s Go

Brandon’, Wash. Post (Nov. 23, 2021),

https://tinyurl.com/three-cheers-lets-go-brandon ... 3

Mark J. Perry, English Has the Richest

Vocabulary, AEI (Oct. 18, 2006),

https://tinyurl.com/23ahkkrw ................................... 2

v

Matthew S. Schwartz, Man who said ‘Let’s go,

Brandon’ to Biden on Christmas Eve says he was

only joking, NPR (Dec. 26, 2021),

https://tinyurl.com/3zeywwuz ................................. 16

N.W.A., Express Yourself, on Straight Outta Compton

(CD, Ruthless Records 1988) .................................. 15

Obscene, Indecent and Profane Broadcasts, Federal

Communications Commission (Jan. 13, 2021),

https://tinyurl.com/FCC-Broadcast-Guide .............. 7

Profanity, Black’s Law Dictionary (12th ed. 2024) .. 11

Public Radio Exchange, A guide to broadcast

obscenities and issuing content advisories,

PRX, https://tinyurl.com/e2mjkw7x (last visited

Apr. 2, 2026) ............................................................... 7

1

INTEREST OF AMICUS CURIAE1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute also files lawsuits and

submits amicus briefs to fulfill its mission. The

Buckeye Institute is a nonpartisan, nonprofit, taxexempt organization, as defined by I.R.C. section

501(c)(3).

SUMMARY OF THE ARGUMENT

This case is about words. Respondents would have

the courts believe that it is about a “four-letter

expletive that has vexed legal authorities and amused

teenagers for generations.” Sheets v. Lipker, No. 2:25CV-493-KCD-DNF, 2026 WL 265715, at *1 (M.D. Fla.

Feb. 2, 2026). In reality, it is about a non-profane

phrase that infiltrated mainstream pop culture.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae made any monetary contribution toward

the preparation or submission of this brief. Counsel timely

provided the notice required by Rule 37.2.

2

The English language has a rich vocabulary, which

continues to expand. Mark J. Perry, English Has the

Richest

Vocabulary,

AEI

(Oct.

18,

2006),

https://tinyurl.com/23ahkkrw. The words speakers

choose convey emotion, tone, setting, and other details

that characterize the communication and the message

conveyed. Speakers can express similar concepts with

different words taking into consideration the

particular audience.

Some people express concepts with impolite—or

even profane—words or phrases, while others express

those same ideas through (more) polite words or

phrases to avoid giving offense. Hence, while sailors

and nuns may be equally regimented, their

vocabulary . . . differs. In this case, the district court

judged the words on a shirt as though the speakers

said something besides what was actually “said.”

Like many phrases or political slogans, “Let’s go

Brandon” has taken on a life of its own. The phrase

originated when a sports broadcaster at a NASCAR

race incorrectly reported on live television that the

crowd chanting “F*** Joe Biden” was instead chanting

“Let’s go Brandon.” Let’s go Brandon: NASCAR driver

Brandon Brown caught in unwinnable culture war,

ESPN (Feb 19, 2022), https://tinyurl.com/aeuspb4a.

Since then, “Let’s go Brandon” has come to be

universally understood as representing dissatisfaction

with former President Biden and his administration’s

policies. Marc Thiessen, a former chief speechwriter

for President George W. Bush, has noted that the

chant is tame compared to what has been said about

other presidents. Marc A. Thiessen, Three cheers for

‘Let’s Go Brandon’, Wash. Post (Nov. 23, 2021),

3

https://tinyurl.com/three-cheers-lets-go-brandon

(referencing phrases such as “Bush lied and people

died,” “Jail the Chief,” “a drunken trowser-maker,”

“pimp of the White House,” and “a hideous

hermaphroditical character which has neither the

force and firmness of a man, not the gentleness and

sensibility of a woman”). But here, “[t]he only ones

hurt by the chant are kids named Brandon whose

parents can no longer cheer for them at sporting

events. Otherwise, it [was] a perfectly harmless and

humorous way for Americans to express their

frustration at a flailing – and failing – presidency.” Id.

This case revolves around the intersection of the

political phrase “Let’s go Brandon” and students’

speech rights in school. This Court has held that

schools can regulate student speech that is indecent,

lewd, or vulgar when said at a school assembly,

promotes illegal drug use, or may appear to be the

speech of the school itself. Mahanoy Area Sch. Dist. v.

B. L. by and through Levy, 594 U.S. 180, 187–88

(2021). Schools may also discipline students who use

“profane” language. See B.H. ex rel. Hawk v. Easton

Area School District, 725 F.3d 293, 304 (3d Cir. 2013).

But these are exceptions to the rule, and—even taking

these exceptions to their maximum logical

boundaries—“Let’s go Brandon” does not fall into any

recognized prohibition. Nothing in the phrase itself is

facially indecent, lewd, or vulgar. There is no reference

to drug use. And no one would read a student’s shirt

and assume he speaks for the school. Punishing

speech for any reason that does not fall within one of

the Court’s approved exceptions is unacceptable.

4

ARGUMENT

I.

This is an ideal vehicle to provide guidance

to school officials, parents, and students on

how

Fraser

and

Tinker

handle

nondisruptive speech that is not plainly

profane or lewd.

Speech on matters of public concern “ ‘occupies the

highest rung of the hierarchy of First Amendment

values’ and so receives ‘special protection’ from the

courts.” Defending Educ. v. Olentangy Loc. Sch. Dist.

Bd. of Educ., 158 F.4th 732, 752 (6th Cir. 2025)

(quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

This case sits atop that highest rung. Its result

impacts students’ First Amendment rights and

determines when and where school administrators

can set the limit on those rights.

This case is critically important to the millions of

students throughout the country who are exploring

the boundaries of permissible in-school political

speech. The First Amendment’s importance for

students cannot be overstated. Unfortunately,

teachers, administrators, and school boards—not

unreasonably—tend to prefer control over freedom out

of “fear of a disturbance” in the classroom. See, e.g.,

Tinker v. Des Moines Indep. Community Sch. Dist.,

393 U.S. 503, 508 (1969). But that does not excuse

illegal censorship. This is America, where “public

schools are the nurseries of democracy. Our

representative democracy only works if we protect the

marketplace of ideas.” Mahanoy Area Sch. Dist., 594

U.S. at 190.

5

The decision below creates a circuit split on this

important issue with, at least, the First, Second,

Third, and Tenth Circuits. See, e.g., Pet. App. at 31a–

32a, 43a–44a, 51a–52a, 56a (Bush, J., dissenting). The

panel majority’s reasoning is largely based on Bethel

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). But

this case is more like Tinker. After all, “[f]or a young

person, wearing apparel with a political message can

be the first point of entry to civic engagement.” Pet.

App. at 29a (Bush, J., dissenting). As Judge Bush’s

dissent points out, the Third Circuit took a different

approach that “reinforces why Fraser must be read

narrowly, and why Tinker governs here.” Pet. App. at

56a (Bush, J., dissenting) (citing B.H. ex rel. Hawk,

725 F.3d 293 (en banc)).

Consistent with this Court’s precedent, under the

Third Circuit’s approach,

(1) schools may categorically restrict

plainly lewd speech, regardless of

message; (2) they

may

restrict

ambiguously lewd speech unless it

plausibly comments on political or social

issues; but (3) schools may not

categorically restrict speech that is not

plainly lewd and that could be seen as

political or social commentary.

Pet. App. at 57a (Bush, J., dissenting) (citing B.H. ex

rel. Hawk, 725 F.3d at 301). Unlike the approach taken

by the Sixth Circuit below, the Third Circuit draws a

clearer line between what the First Amendment

protects and what it does not.

6

Schools are supposed to teach students how to be

responsible, civically engaged citizens. Stifling

speech—especially political speech—curbs human

growth and flourishing. And doing so on the grounds

of any particular administrator’s subjective and wrong

interpretation is all the worse. Under the panel’s

opinion, any principal, teacher, or other administrator

would have near carte blanche authority to sanction

speech they do not like and “reasonably interpret” to

violate school rules. But “[i]n our system, stateoperated schools may not be enclaves of

totalitarianism.” Tinker, 393 U.S. at 511. Like a class

clown who cannot read the room, the panel’s grant of

authority takes this Court’s precedent a bridge too far.

Thus, the Court should grant the petition to clarify

that where actual profanity is absent, the disruption

test laid out in Tinker is the standard.

II. Students cannot be punished for using

profane language when their language is not

profane.

Regulating speech under the First Amendment

should constitute a rare exception. Still, certain words

or phrases are so profane, lewd, or vulgar that the

government does not allow them in school, or in radio

or TV broadcasts for that matter. But schools cannot

prohibit non-profane words conveying the same

message. Polite society avoids, and schools can

prohibit, certain words, but generally not the message

behind those words.

7

The government has long recognized that certain

words are unacceptable for certain audiences. The

federal government has prohibited broadcasting

“obscene, indecent, or profane language.” 18 U.S.C.

§ 1464. The FCC explains that “[i]ndecent content

portrays sexual or excretory organs or activities in a

way that is patently offensive but does not meet the

three-prong test for obscenity.” Obscene, Indecent and

Profane Broadcasts, Federal Communications

Commission (Jan. 13, 2021), https://tinyurl.com/FCCBroadcast-Guide. “Profane content includes ‘grossly

offensive’ language that is considered a public

nuisance.” Id. But while the FCC may not let Eminem

be, and may have tried to shut him down on MTV,

Eminem, Without Me, on The Eminem Show (CD,

Aftermath Ent. May 26, 2002), it nevertheless

interprets these restrictions narrowly, cf. Declan

McCullagh, FCC Reversal: Eminem Not Obscene,

Wired (Jan. 12, 2002), https://tinyurl.com/mthhhxmv.

Indeed, although it does not publish a list of prohibited

words, the Public Radio Exchange has noted specific

words that “must always be bleeped/dropped”—and

there are not many. Public Radio Exchange, A guide to

broadcast obscenities and issuing content advisories,

PRX, https://tinyurl.com/e2mjkw7x (last visited Apr.

2, 2026). By contrast, substitute words for the

“bleeped” words are acceptable. Id.

8

In the education context, consider the following

scenarios:

1. Principal Rooney comes upon a group of

freshmen and hears:

Ferris: “That was a great movie!”

Cameron: Bulls***! It was awful. I hated

it.

Garth: No f***ing way! It was lousy.

Sloane: Shut the front door!

Jeanie: Bullcrap, Ferris, are you out of

your mind?

Now who should get in trouble? Four of the students

expressed the same sentiment disagreeing with

Ferris. But schools can—and should—distinguish

between the boys’ profanity and the girls’ nonprofanity, punishing the former incidents and not the

latter.

2. Mr. Gillen comes into his classroom and hears

the kids complaining about the lack of heat in the

room:

Alice: Shucks, it’s cold in here!

Lisa: Shoot, I know, I’m absolutely

freezing.

John: S***, I am so cold I can’t stand it.

Are all these statements legally “equivalent”? See Pet.

App. at 93a. The principal in this case and the district

court judge might say so. But, in fact, they are not.

9

3. Bob is angry about his grade on a math test that

he just received back. He can express his anger and

displeasure in several ways. Which of the following

expressions is/are unacceptable?

a. Shoot!

b. Shucks!

c. Crap!

d. S***!

e. F***!

f. Frick!

Answer: It depends. If he attends Tri County Area

Schools, all of the above—because the words express

the same sentiment, and the principal in Tri County

cannot distinguish between the actual words. If

Michael attends a more sensible school district, the

answer is only d and e.

4. Student A and Student B get into an argument.

Student A is overheard saying “F*** you!” Student

B retorts: “That is not nice. No freakin’ way am I

going to put up with your profanity. I wish

misfortune and suffering on you and your heirs for

generations to come!”

Did Student B say anything warranting discipline

versus Student A’s exclamation?

Analyzing this case requires not only familiarity

with the law but also common sense—and a sense of

humor. The school district in this case seems to lack a

bit of both.

10

Of course, student speech cases can be challenging

because the situations often deal with sensitive topics.

Some involve socially uncomfortable issues like sex,

see Fraser, 478 U.S. at 685, others—including this

case—involve politics, see Tinker, 393 U.S. at 504. But

“[i]t can hardly be argued that either students or

teachers shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” Tinker,

393 U.S. at 506. And the political speech in this case

is free of profanity.

Recently, the Court explicitly set out the

“categories of student speech that schools may

regulate in certain circumstances.” Mahanoy Area

Sch. Dist., 594 U.S. at 187. Those categories are:

(1) “indecent,” “lewd,” or “vulgar” speech

uttered during a school assembly on

school grounds; (2) speech, uttered

during a class trip, that promotes “illegal

drug use,”; and (3) speech that others

may reasonably perceive as “bear[ing]

the imprimatur of the school,” such as

that appearing in a school-sponsored

newspaper. Finally, in Tinker, we said

schools have a special interest in

regulating speech that “materially

disrupts

classwork

or

involves

substantial disorder or invasion of the

rights of others.”

Id. at 187–88 (citing Fraser, 478 U.S. at 685; Morse v.

Frederick, 551 U.S. 393, 409 (2007); Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988); and

Tinker, 393 U.S. at 513). Further, Fraser upheld a

school’s discipline of a student for violating the school’s

11

policy prohibiting “[c]onduct which materially and

substantially interferes with the educational

process . . . , including the use of obscene, profane

language or gestures.” Fraser, 478 U.S. at 678

(emphasis added). Several circuit courts have followed

Fraser, explaining that “[u]nder Fraser, a school may

categorically prohibit lewd, vulgar or profane2

language.” B.H. ex rel. Hawk, 725 F.3d at 304; Guiles

ex rel. Guiles v. Marineau, 461 F.3d 320, 326 (2d Cir.

2006) (same); cf. Barr v. Lafon, 538 F.3d 554, 563–64

(6th Cir. 2008) (“[U]nder Fraser, a school may

categorically prohibit vulgar, lewd, indecent, or

plainly offensive student speech.”).

Neither the school nor the district court have

explained how Petitioners, by wearing sweatshirts

saying “Let’s go Brandon,” fall into any of the Court’s

categories. There is no sexual over or under-tone, no

reference to drugs, and no appearance that Petitioners

were speaking for the school—leaving available only

the Court’s profanity exception—which does not apply

either. Rather, the opinions below mischaracterize the

profanity exception and allow the school to ban

language that has a “profane meaning.” See, e.g., Pet.

App. at 53a (Bush, J., dissenting). The district court

reasoned that Respondents’ “reasonably interpreted

Let’s Go Brandon as having a profane meaning. In a

middle school, the phrase enjoys no more First

Amendment protection [than] Matt Fraser’s

nominating speech—none at all.” Pet. App. at 87a

(emphasis added). But that expansion of “profanity”

would include virtually all “clean” substitutes for

Profanity includes “obscene, vulgar, or insulting language.”

Profanity, Black’s Law Dictionary (12th ed. 2024).

2

12

profanity. Under the district court’s theory, the school

could ban all substitutes for notorious curse words like

the F-bomb, H***, S***, D***, B****, A**, etc.

Further, under this theory, a school could ban nearly

every exclamatory word or phrase—which is well

beyond the limited First Amendment exception

permitted by precedent.

III. Lewd

substitutes for

profanity

are

unacceptable under Fraser, but non-lewd

substitutes for profanity are protected by

the First Amendment.

Schools may restrict speech only if it falls within

the Court’s directives. In the case of the F-word, the

word itself is profane and therefore always

inappropriate. The school should also be able to

regulate plainly lewd language, whether that

language is a substitute for the F-bomb or a student’s

attempt to pull one over on school administrators. For

example, in Fraser, Matt Fraser delivered a speech

filled with sexual innuendos to a high school assembly.

Fraser, 478 U.S. at 678. The Court agreed that

punishing Fraser was permissible because his conduct

“undermine[d] the school’s basic educational mission.

A high school assembly or classroom is no place for a

sexually explicit monologue directed towards an

unsuspecting audience of teenage students.” Id. at

685. The overall speech was “offensively lewd and

indecent.” Id. That is not the case here. Rather,

Petitioners’ use of euphemism was to convey a political

opinion. Although it is highly unlikely that public

schools’ educational missions would include

“unprovoked sexually explicit monologues such as Mr.

Fraser’s,” see id. at 686, their educational missions

13

certainly should include the “inculcat[ion of]

fundamental values necessary to the maintenance of

a democratic political system,” see, e.g., id. at 681

(quoting Ambach v. Norwick, 441 U.S. 68, 76–77

(1979)).

As previously mentioned, “Let’s go Brandon” was

derived from a “F*** Joe Biden” chant. ESPN, supra.

The F-word has two distinct dictionary definitions.

The first: “a rude word meaning to have sex with

someone,” and the second: “a rude word used when

expressing extreme anger, or to add force to what is

being

said.”

F***,

Cambridge

Dictionary,

https://tinyurl.com/yk5h3bfu (last visited Apr. 2,

2026). Surely when Petitioners wore sweatshirts to

school that said “Let’s go Brandon,” they were

expressing the latter. Cf. Pet. App. at 48a (Bush, J.,

dissenting) (“The crowd did not chant the word at

Talladega to advocate having sex with the former

President.”). The F-word is considered taboo and

socially inappropriate, no matter the underlying

meaning. To illustrate, consider alternative phrases

for “F*** Joe Biden.” If a student wore a shirt that

said, “I want to have sex with Joe Biden,” that would

be lewd (not to mention bizarre), and the school could

ban that speech accordingly. Conversely, a shirt that

read “I hate Joe Biden,” could not be banned under

Fraser because it is neither lewd nor vulgar; it is

political. Petitioners’ shirts were indisputably political

in nature, not sexual.

14

IV. The First Amendment protects Petitioners’

political statements.

Petitioners’ speech did not include any words that

were vulgar, and their speech was not innuendo for a

lewd or indecent message. Instead, the speech

expressed a political message—displeasure with the

Biden Administration.

In the context of a then-upcoming presidential

election and with many politicians and pundits

repeating the phrase, “Let’s go Brandon” was, and is,

understood as a political statement. Petitioners could

have worn shirts that said “F*** Joe Biden” to express

their displeasure with the President, but they chose

instead to convey a similar message using language

that is a clean, school-friendly alternative. Saying

“Let’s go Brandon” is not the same as “F*** Joe Biden.”

Hence, we do not even write out the f*** word but

freely type “let’s go.”

It is common practice for people in polite society,

and professional, academic, and social settings, to

refer to the word “N*****” as “the N-word.” Virtually

everyone knows what the “N” stands for. Speaking the

N-word in full is universally considered profane—and

highly inflammatory. Anyone using that word is likely

to be socially ostracized. When people hear someone

substitute “the N-Word,” in place of saying the actual

N-word, no listener wonders whether the speaker

meant nincompoop, numbskull, or Narnia.

So what does the speaker mean by saying the

phrase “the N-word”? For one, the speaker conveys

that he or she is uncomfortable using the actual word.

Second, saying “the N-word” can signal the weight of

15

the actual word without also carrying the profanity.

Indeed, the use of euphemisms such as “the N-word”

in classrooms and polite society furthers pedagogical

interests while avoiding offense. If teachers and

students cannot use euphemisms rather than actual

profanity, schools will be hard-pressed to effectively

discuss divisive topics such as race relations. In many

instances, using a euphemism in place of the actual

word invokes the seriousness of a particular lesson.

Stripping the message of any reference to the actual

word would leave the lesson incomplete. For example,

when students in English class discuss the classic

book Huckleberry Finn—which uses the actual Nword as part of a larger condemnation of racism—we

expect students to use the phrase “the N-word” rather

than the actual word. The word is problematic, but the

substitute is not. And without any reference to the

original word students blunder past Huck Finn’s

lesson.

Or consider an example from this century—a

student wearing a shirt that portrays a promotional

poster for the movie Straight Outta Compton, the title

of an album and biographical film about the music

group “N.W.A.” The shirt does not include the full

name of the music group. The “N” in N.W.A. stands for

the N-word, which is profane. Because the shirt does

not include the full written-out N-word, the First

Amendment would not permit banning that shirt.

However, the district court’s reasoning would allow

the school to punish a student for “‘expressin’ with full

capabilities,” N.W.A., Express Yourself, on Straight

Outta Compton (CD, Ruthless Records 1988). Even

though there is nothing vulgar or otherwise disruptive

about the shirt, under the lower court’s logic, if “school

16

officials reasonably interpreted the [picture] as having

a profane meaning,” the school could require the

student to change. Pet. App. at 87a. Such a standard

is unworkable and unconstitutional. Students should

not be punished as though they have used profane

language when they have not, in fact, used profane

language.

Many lawmakers have posted the phrase “Let’s go

Brandon” on social media or recited it verbally,3

including on the House floor. Colleen Long, How ‘Let’s

Go Brandon’ became code for insulting Joe Biden,

Associated

Press

(Oct.

30,

2021),

https://tinyurl.com/3kp7wuer.

Petitioners

and

politicians alike have used the phrase to express

anger, dissatisfaction, or even humor—never a sexual

act. This phrase became so popular precisely because

it expresses the speaker’s political views in a

humorous, socially palatable, and non-profane

manner. It conveys a shorthand message of political

dissatisfaction and also serves as a much more

effective, light-hearted critique of the Biden

Administration. Plus, it’s catchy. In other words, “let’s

go” is not in danger of becoming the new “F-word.”

3 Oddly, even President Biden repeated the phrase to a young child

during a Christmas Eve phone call. Matthew S. Schwartz, Man

who said ‘Let’s go, Brandon’ to Biden on Christmas Eve says he was

only joking, NPR (Dec. 26, 2021), https://tinyurl.com/3zeywwuz.

17

Petitioners expressed their political message in a

manner appropriate for a school setting. Indeed,

there is a category of speech that is

almost always beyond the regulatory

authority of a public school. This is

student speech that is not expressly and

specifically directed at the school, school

administrators, teachers, or fellow

students and that addresses matters of

public concern, including sensitive

subjects like politics, religion, and social

relations. Speech on such matters lies at

the heart of the First Amendment’s

protection.

Mahanoy Area Sch. Dist., 594 U.S. at 205.

Every day, people choose to express themselves

using clean(er) language in certain contexts instead of

resorting to full swear words. In an ideal world,

Lincoln-Douglas debates would occupy politics more

than memes and gifs, but the First Amendment

requires no such thing. Petitioners’ shirt choice,

fashionable or not, conveyed a political message

without using profanity and fits squarely within the

Supreme Court’s “category of speech that is almost

always beyond the regulatory authority of a public

school.” Id. These students expressed their opinions

through G-rated language rather than wearing the Fword on their chests. The law should not punish kids

who are complying with societal norms while

expressing their political viewpoints in a non-profane

and humorous manner. The students’ comparatively

civil speech should be encouraged because, otherwise,

18

students learn that polite society does not value selfcensorship to avoid profane language.

The reporter’s original gaffe or misdirection

resulted in a cultural phenomenon—not a new

profanity. Most telling is that the reporter’s use of the

statement, “Let’s go Brandon” did not violate FCC

decency regulations because it is not “obscene,

indecent, or profane language,” 18 U.S.C. § 1464,

while the word the crowd was actually chanting would

have elicited a bleep in order to comply with FCC

rules. Schools should have at least as much common

sense and respect for the First Amendment as the

FCC—it’s not a high bar. Whether it is “Let’s go

Brandon,” “Orange man bad,” “Lock him/her up,” “He

is a fascist,” or “Trump too small,” the First

Amendment protects expressing various insulting

political phrases.

V.

Petitioners’ conduct does not violate the

Tinker standard because it did not create a

disruption.

Speech falling outside of the Court’s limited

categories of lewd, vulgar, or profane language “is

subject to Tinker’s general rule: it may be regulated

only if it would substantially disrupt school operations

or interfere with the right of others.” Saxe v. State Coll.

Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001). The

students in Tinker were punished for wearing black

armbands to protest the Vietnam War. Tinker, 393

U.S. at 514. But that punishment was

unconstitutional and violated the students’ First

Amendment rights. Id. Although the lower courts

liken this case to Fraser, Tinker is a more accurate

comparison. Like the armbands in Tinker, Petitioners’

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“Let’s go Brandon” apparel expressed a political

opinion and “neither interrupted school activities nor

sought to intrude in the school affairs or the lives of

others.” Id. “In [these] circumstances, our

Constitution does not permit officials of the State to

deny their form of expression.” Id.

Even the Fraser Court acknowledged the “marked

distinction between the political ‘message’ of the

armbands in Tinker and the sexual content of

[Fraser’s] speech.” Fraser, 478 U.S. at 680. Central to

Tinker is whether the student conduct disrupts school

activities. Tinker, 393 U.S. at 514. Here, the school

offers no evidence that Petitioners’ conduct disrupted

any school activities or learning. Even the district

court avers that

the general rule is that school

administrators can limit speech in a

reasonable fashion to further important

policies at the heart of public education.

Tinker provides the exception—schools

cannot go so far as to limit nondisruptive

discussion of political or social issues that

the administration finds distasteful or

wrong. Drawing such a line may be

difficult, but it must be left as a practical

matter first to school administrators,

with resort to the courts always available

for cases like Tinker where the school

goes too far.

Pet. App. at 81a (emphasis added) (quoting Defoe ex

rel. Defoe v. Spiva, 625 F.3d 324, 342 (6th Cir. 2010)).

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Here, the school went too far. The school has no

“important policy” that it is advancing by punishing

Petitioners—it is simply suppressing speech. The

“disruptive conduct” that is vital to the Tinker

analysis is missing here, and without it, the school has

no justification for punishing Petitioners’ non-profane

speech.

CONCLUSION

Amicus—calling upon the richness of the English

language—respectfully asks, “What in tarnation was

the lower court thinking?”—a non-profane way of

saying, “Amicus respectfully requests that this Court

grant the petition and reverse the lower court’s

decision.”

Respectfully submitted,

David C. Tryon

Counsel of Record

Alex M. Certo

J. Simon Peter Mizner

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

April 30, 2026