Shed at the Schoolhouse Gate: Analyzing the Scope of the Supreme Court’s Vulgarity Exception to Student Free Speech

I. Introduction

Can middle schoolers in public schools wear shirts saying “I ♥ Boobies” to school to raise breast cancer awareness? Are they allowed to wear a sweatshirt saying “Let’s Go Brandon,” a euphemism for “F**k Joe Biden,” to school to express their dislike of President Joe Biden? The Supreme Court has long held that students have a constitutional right to free speech at school as long as the speech is not disruptive. However, the Court has also held that “plainly offensive” vulgar or obscene speech at school is not protected under this framework. But the scope of this exception is unclear. Political speech is at the heart of what is protected by the First Amendment and thus typically receives heightened protection. Thus, are schools permitted to regulate euphemistic vulgar speech that also makes a political or social point? A divided Third Circuit Court of Appeals in B.H. ex rel. Hawk v. Easton Area School District held that schools are not allowed to regulate such speech. In B.A. v. Tri County Area Schools, a divided Sixth Circuit Court of Appeals panel arrived at the contrary conclusion by holding that schools can regulate that category of speech so long as the school reasonably determines that the speech is vulgar. The ramifications of this issue are clear: it could lead to suppression of constitutionally protected political speech under the guise of regulating vulgarity. With this Circuit split as a backdrop, a determination of the correct approach to answer this important question is warranted.

II. Background

A. Tinker, Fraser, and Morse

In Tinker v. Des Moines Independent Community School District, the Supreme Court held that a public school’s prohibition on black armbands worn by students to protest the Vietnam War violated the students’ First Amendment right to free speech. The Court maintained that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] Thus, the case served to safeguard most student speech against State interference. Under Tinker, however,public schools can still prohibit student expression if school officials can reasonably determine that it will “materially and substantially disrupt the work and discipline of the school.”[2] This has long been the controlling standard regarding student speech in school. But there are exceptions.

The Court carved out its first exception to the Tinker standard in Bethel School District v. Fraser. Respondent Matthew Fraser, a public high school student, had “delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours”[3] during which he “referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.”[4] As punishment, the school informed Fraser that he would be suspended and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement ceremony. Fraser sued the school, alleging that the school had violated his First Amendment right to free speech. But the Supreme Court ultimately held that a school district can regulate “lewd, indecent, or offensive speech and conduct,”[5] even if it does not materially and substantially disrupt school functions. 

Another relevant exception to Tinker came later in Morse v. Frederick. Joseph Frederick, a high school senior, had unfurled and refused to take down a banner which said “BONG HiTS 4 JESUS.” The school principal Morse had interpreted the banner as promoting illegal drug use, so she confiscated the banner and later suspended Frederick. Frederick filed suit, “alleging that the school board and Morse had violated his First Amendment rights,”[6] yet, the Court held that “the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.”[7] By doing so, the Court created the rule that schools can regulate “speech that can reasonably be regarded as encouraging illegal drug use”[8] even without conducting the Tinker “substantial disruption” analysis. Notably, Justice Samuel Alito wrote a concurring opinion which was joined by Justice Anthony Kennedy. The concurrence conditioned their crucial fourth and fifth votes to join the Court’s majority opinion based on “the understanding that…it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.’”[9]

Tinker enshrined constitutional protection for student expression in public schools, but Fraser and Morse later demonstrated that this protection is not unlimited. While Tinker clarified that school officials could regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others,”[10] Fraser and Morse expanded this authority to include prohibiting (1) indecent or lewd speech and conduct and (2) speech that promotes illegal drug use, even if there is no material disruption or substantial disorder of the school environment. Ultimately, public school students enjoy broad free speech protections but are limited by the effects of their speech and by certain narrow exceptions where the Court has deemed it necessary for schools to retain the authority to discipline students over certain expression. 

B. Hawk and Tri County Area Schools

That brings us to the Circuit cases at hand. Keep a Breast, a “‘leading youth focused global breast cancer organization,’”[11] began selling bracelets “emblazoned with ‘I ♥ Boobies! (KEEP A BREAST)’”[12] as part of a new initiative to raise breast cancer awareness. The initiative was popular, and some middle school girls began wearing the bracelets to their public middle school. After some deliberation, the school eventually banned the bracelets. Even after the ban, students B.H. and K.M. still wore their bracelets to school and were promptly suspended for refusing to remove the bracelets when instructed to. Through their mothers, B.H. and K.M. filed suit against the school district, alleging a violation of their right to freedom of speech. The Third Circuit agreed. 

Judge Smith, writing for the majority in Hawk, held that Fraser had been “modified by the Supreme Court’s later reasoning”[13] in Morse, and thus provided a new framework for analyzing vulgar speech in schools: 

(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, and (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. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser.[14]

Under this framework, the majority asserted that the bracelets were “ambiguously lewd” rather than “plainly lewd” and also commented on the exigent social issue of breast cancer awareness. The majority argued, Fraser did not apply, and the speech would have to be analyzed under Tinker’s standard. Ultimately, the lack of evidence “that the bracelets threatened to substantially disrupt the school”[15] meant that they were constitutionally protected under Tinker.

The Sixth Circuit was confronted with a similar case in Tri County Area Schools, but came to a different conclusion than Hawk. Two middle school students had worn “sweatshirts emblazoned with the phrase ‘Let’s Go Brandon’ to school.”[16] For those not familiar, “Let’s Go Brandon” is a euphemism for “F**k Joe Biden.” The phrase started as a meme but later became a political phrase. It was later adapted by former President Biden’s supporters “to make the ‘Dark Brandon’ meme, which depicted the then-President as a preternaturally powerful leader with eyes of glowing flame.”[17] Thereafter, “Let’s Go Brandon” entered the public consciousness and lexicon. The school administrators had asked the students to remove the sweatshirts based on the commonly understood meaning of “Let’s Go Brandon.” Through their mother, “the students sued the school district and several school administrators, alleging that the school deprived them of their First Amendment rights.”[18] A divided Sixth Circuit held that the students did not have a First Amendment right to wear the sweatshirts under Tinker and Fraser.

To answer the question of “how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message,”[19] Judge Nalbadian, writing for the majority, determined that two sub-questions had to be answered: whether “Let’s Go Brandon” was actually vulgar and “whether a school administrator may prohibit student political speech that has a vulgar message.”[20] Regarding the first question, the majority answered in the affirmative, asserting that Fraser leaves “it to the school to decide what is vulgar or profane so long as the decision is not unreasonable.”[21] For the second question, the majority deviated from the Hawk’s framework and held that “the protection for political speech doesn’t give a student carte blanche to use vulgarity at school—even when that vulgarity is cloaked in innuendo or euphemism.”[22] And since “the school administrators reasonably interpreted the ‘Let’s Go Brandon’ slogan as being vulgar speech that ‘a school may categorically prohibit’ despite its political message,” the school did not violate the students’ First Amendment rights.

III. Two Issues

There appear to be two primary issues at the heart of the disagreement between the Third and Sixth Circuits. The first is whether Fraser’s speech was political. The second is whether Fraser was later “modified”[23] by Morse, depending on whether Justice Alito’s concurrence is controlling.

A. Was Fraser’s speech political?

Since Fraser was delivering a nomination speech for student government, it’s contentious whether his speech was political. If Fraser’s speech was political, then it would mean that the vulgarity of a student’s speech would outweigh any political point the speech makes. If his speech wasn’t political, then it means that Fraser left the door open on how to deal with speech that can be both vulgar and political. The divergence over whether the expression in Fraser was political stems from instances of ambiguous phrasing in the Court’s Opinion. 

The Sixth Circuit’s interpretation of these ambiguous lines favored the conclusion that Fraser’s speech was “a quintessentially political act.”[24] Conversely, the Third Circuit majority believed that the Fraser “Court did not believe that Fraser's speech could plausibly be interpreted as political or social commentary”[25] because of its plain lewdness. Hawk explained that “obscenity and obscenity to minors, like ‘other historically unprotected categories of speech,’ have little or no political or social value.”[26] Therefore, according to the Hawk, Fraser’s “​​speech could not be interpreted as having ‘serious’ political value.”[27] Under this reasoning, “schools may restrict plainly lewd speech regardless of whether it could plausibly be interpreted to comment on a political or social issue.”[28] Both Circuit courts agreed that “schools may also categorically restrict ambiguous speech that a reasonable observer could interpret as lewd, vulgar, profane, or offensive”[29] because the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”[30] However, only the Third Circuit exempted ambiguously lewd speech that “could also plausibly be interpreted as expressing a view on a political or social issue”[31] from categorical restriction by a school. This exemption is at the core of the disagreement between the Circuits. 

B. Is Justice Alito’s concurrence in Morse controlling?

Aside from the ambiguity over whether Fraser’s speech was political, it is also disputed whether Justice Alito’s narrow concurrence is the controlling opinion in Morse. This is a procedural question, not explicitly related to the discussion of vulgar and political student speech that falls within the gap between Tinker and Fraser, so the particulars need not be discussed here. But its implications are crucial for determining whether Hawk had adopted the right framework. Hawk’s holding that Fraser was “modified”[32] by Morse is premised on the belief that Justice Alito’s concurrence is the controlling opinion in Morse. Critically, the Hawk exception for ambiguously lewd speech in schools is contingent on whether that speech “could also plausibly be interpreted as expressing a view on a political or social issue,” which is language taken directly from Justice Alito’s concurrence. If Justice Alito’s concurrence is not the controlling opinion, it becomes a Herculean task to defend Hawk’s framework as grounded in Supreme Court precedent.

IV. The Right Approach

In light of these difficulties, the correct way to decide cases where student speech in public schools is both ambiguously lewd and makes a political point should be determined.

First, the two exegetical issues above deserve some discussion. A natural reading of Fraser’s ambiguous language leans toward an interpretation where the Fraser Court believed Fraser was “making what [he] consider[ed] political point”[33] but that his “plainly offensive”[34] vulgarity “trumps the political aspect of speech at school.”[35] Moreover, Fraser highlights that the Court agreed with the sentiment that obscene “‘utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”[36] The general tone of the Fraser opinion seems to regard a school’s authority to prohibit speech of the kind made by Fraser as paramount, even if the speaker was attempting to share a political message. 

It is facially more reasonable to consider Chief Justice Roberts’ majority opinion in Morse as controlling rather than Justice Alito’s. While Justice Alito did condition his vote on whether the majority would seek to restrict political speech related to drug use, he and Justice Kennedy still joined the majority opinion in full because it did not suggest that it would bless this restriction. If the majority opinion is controlling, it follows that the Third Circuit lacked concrete Supreme Court precedent to base its exception for ambiguously lewd, political speech on. The Sixth Circuit makes a valid point in Tri County Area Schools that “even if we assumed that Justice Alito’s concurrence was the controlling opinion, it’s not clear that it should be viewed as modifying Fraser”[37] because “the exceptions to Tinker’s requirements created by Morse and Fraser are distinct from one another.”[38] Indeed, Fraser dealt with vulgar speech while Morse concerned speech promoting illegal drug use. Hawk makes the argument that it would not make sense that ambiguously lewd speech “should receive any less protection”[39] than drug-promoting speech which presents a “unique threat to the physical safety of students.”[40] However, for lack of a clear Supreme Court directive relating these exceptions to Tinker, courts should be cautious to adopt Hawk’s framework.

V. A New Standard

The Supreme Court in Morse recognized that the “mode of analysis employed in Fraser is not entirely clear.”[41] It is also contentious that Morse substantially modified Fraser in any way. Until the Supreme Court explicitly carves out an exception, broad interpretations of Fraser, such as the one employed by Tri County Area Schools, are warranted. As an article from the Harvard Law Review, published not long after the Hawk decision, notes:

Hawk represents a serious and principled attempt by a circuit court of appeals to cabin Fraser’s scope. The need to pare down Fraser’s otherwise-categorical exclusion of ‘ugly’ speech from constitutional protection is grounded in bedrock First Amendment principles, in the Supreme Court’s prior student speech jurisprudence, and in the contemporary Court’s highly speech-protective orientation. What the Third Circuit lacked, however, was clear and unambiguous Supreme Court precedent supporting its interpretation.[42]

But Hawk laid a solid foundation for how the Supreme Court should handle the nexus of speech that is both political and ambiguously vulgar. With some adjustments, a prudent framework that the Supreme Court would be wise to adopt can be fleshed out. 

“Political speech, of course, is ‘at the core of what the First Amendment is designed to protect.’”[43] It makes sense, then, that Courts should adopt a skeptical attitude when political speech is at risk of being chilled. Regardless of whether Fraser’s speech was political or not, “plainly offensive”[44] expressions of the kind Fraser made can be categorically restricted by schools. Additionally, it’s evident that the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”[45] This is an understandable rule. For one, “[s]chool officials know the age, maturity, and other characteristics of their students far better than judges do.”[46] This also “ensures that unelected federal judges do not supplant democratically elected school boards as the arbiters of what is or is not appropriate for a student to say while at school.”[47] But this deference is not unlimited. School boards may impermissibly engage in viewpoint discrimination when determining “plainly offensive” speech because “much political and religious speech might be perceived as offensive to some.”[48] To ensure that schools don’t exceed their discretion, Hawk correctly recognizes that it “remains the job of judges, nonetheless, to determine whether a reasonable observer could interpret student speech as lewd, profane, vulgar, or offensive.”[49] Either way, schools have broad authority to restrict even ambiguously lewd speech. While this is the Third Circuit’s position, it nevertheless exempted speech that is both ambiguously lewd and “that could plausibly be interpreted as commenting on political or social issues.”[50]

While Hawk’s framework provides a solid foundation for a new standard to be adopted by the Supreme Court, there are two problems with it. The primary issue has to do with the distinction between plain and ambiguously lewd speech. Relying on Fraser, Hawk defines plainly lewd speech as speech that “offends for the same reasons obscenity offends.”[51] This is a highly subjective definition. For one school district, nudity in art class may be commonplace, but a minor profanity could be highly offensive. Another school district may be horrified by sexual words but may not reprimand students when they use other forceful vulgar terms. Indeed, it’s “often true that one man’s vulgarity is another’s lyric.”[52] This subjectivity was one reason why a rational-basis deference was warranted for school districts to determine what is vulgar. The Third Circuit argues that the “Supreme Court’s obscenity-to-minors case law marks the contours of plainly lewd speech” and that “the fault lines demarcating plainly lewd speech and political or social speech will settle and become more rule-like as precedent accumulates.” But this still forces judges to demarcate speech that is plainly lewd from ambiguously lewd speech in a subjective manner, rather than leave this determination to the democratic process. Judges’ findings of what is plainly vulgar under this framework would be akin to “I know it when I see it.”[53] Tri County Area Schools also correctly recognizes that “[v]ulgarity and profanity are ever shifting marks. Swearwords that would have curled a prudish Victorian’s hair in 1890 have lost their potency in the intervening decades. And new slang terms have taken their place.”[54] Speech that “offends for the same reasons obscenity offends” is going to vary from person to person and from judge to judge.

The second issue with the framework is the strength of the standard of “plausibly interpreted as commenting on political or social issues.” While this standard may make sense in the context of speech related to drug-use, it’s less obvious how it maps on to ambiguously vulgar speech. Consider, for example, if a puerile middle school boy wears a shirt emblazoned with “I ♥ Boobies” to a school that has never heard of the Keep a Breast Foundation’s initiative. While the student could assert that he was purportedly wearing the shirt because it could plausibly be interpreted as a statement on the social issue of breast cancer, the school has a greater interest in asking the boy to remove the shirt because no other student is aware of the movement. And to combine this issue with the previous one, if the same student declares that “Dark Brandon is badass!” and a judge determines that (1) “badass” does not “offend for the same reasons obscenity offend” and (2) the poster can plausibly interpreted as supporting President Biden, the school could not reprimand the student even if the school strongly disapproved of the term “badass” and even if only a handful of students knew who “Dark Brandon” was. 

Here are two possible remedies for these defects. Morse employs a contextual inquiry to determine how a reasonable observer would interpret speech they hear or see, and “the subjective intent of the speaker is irrelevant.”[55] With this in mind, the standards can be tweaked for determining plain vulgarity and for interpreting a political message. To determine whether speech in a specific case was plainly lewd, courts should determine whether the speech could possibly be interpreted by other students as plainly lewd. While not perfect, this analysis would allow for greater deference to the school community and their ideas of plain vulgarity rather than for a judge to impose their subjective opinion of vulgarity onto the speech. Next, the standard of “plausibly” interpreting ambiguously profane speech as commenting on a matter of political or social concern should be upgraded to “probably.” Again, while not a panacea for the issue, it could help determine that a student really is making a political statement instead of the student making a sly attempt to use vulgar words prohibited by school officials. It’s also possible that speech from concrete movements or speech from the broader political discourse like “I ♥ Boobies (Keep a Breast)” and “Let’s Go Brandon!” could pass muster under this test. This modified framework, or something similar, could be a prudent one for the Supreme Court to adopt for future cases involving speech in public schools that is ambiguously vulgar and comments on a matter of public concern.

VI. Conclusion

The question of a public school’s authority to regulate political student speech that is not prima facie vulgar or obscene is an important one that has clear implications for the scope of students’ constitutional right to freedom of speech in school. The split between the divided Third and Sixth Circuits on this issue demonstrates that it is not a simple one. Still, a proper reading of Supreme Court precedent means that courts should grant broad discretion to school authorities to determine what speech is vulgar in the school environment. And, lacking clear Supreme Court precedent to the contrary, a school’s authority to regulate even ambiguously vulgar speech outweighs the political content of the speech. However, to ensure that students’ core right to comment on political or social topics of public concern is not suppressed simply because the speech could be interpreted as “offensive,” the Supreme Court should ultimately limit the scope of this authority by adopting a modified interpretative framework similar to the one suggested by the Third Circuit in Hawk.

[1]  Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

[2] Id, 513

[3] Bethel School District v. Fraser, 478 U.S. 675, 675 (1986).

[4] Id., 677-678.

[5] Id., 683.

[6] Morse v. Frederick, 551 U.S. 393, 399 (2007).

[7] Id., 397

[8] Id.

[9] Id., 422

[10] Tinker v. Des Moines, 513 (1969).

[11]  B.H. ex rel. Hawk v. Easton Area School District, 725 F. 3d 293 (3rd Cir. 2013).

[12] - [15] Id.

[16] B.A. v. Tri County Area Schools, WL 2911071 (6th Cir. 2025).

[17] - [22] Id.

[23] Hawk v. Easton Area School District (3rd Cir. 2013).

[24] B.A. v. Tri County Area Schools (6th Cir. 2025).

[25] Hawk v. Easton Area School District (3rd Cir. 2013).

[26] - [29] Id.

[30] Bethel v. Fraser, 683 (1986).

[31] Hawk v. Easton Area School District (3rd Cir. 2013).

[32] Id.

[33] Bethel v. Fraser, 682 (1986).

[34] Id, 683.

[35] B.A. v. Tri County Area Schools (6th Cir. 2025).

 [36] Bethel v. Fraser, 683 (1986). 

[37] B.A. v. Tri County Area Schools (6th Cir. 2025).

[38] Id.

[39] Hawk v. Easton Area School District (3rd Cir. 2013).

[40] Morse v. Frederick, 425 (2007).

[41] Id, 404.

[42] “First Amendment — Student Speech — Third Circuit Limits Censorship of ‘Ambiguously Lewd’ Speech” Harvard Law Review 127, no. 3 (2014): 1049–58.

[43] Morse v. Frederick, 403 (2007).

[44] Id.

[45] Bethel v. Fraser, 683 (1986).

[46] Hawk v. Easton Area School District (3rd Cir. 2013).

[47] B.A. v. Tri County Area Schools (6th Cir. 2025).

[48] Morse v. Frederick, 409 (2007).

[49] Hawk v. Easton Area School District (3rd Cir. 2013).

[50] Id.

[51] Bethel v. Fraser, 685 (1986).

[52] Cohen v. California, 403 U.S. 15, 25 (1971).

[53] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

[54] B.A. v. Tri County Area Schools (6th Cir. 2025).

[55] Hawk v. Easton Area School District (3rd Cir. 2013).