N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227; Lloyd v. Kaminski, No. 20-C-276 (E.D. Wis.) November 6, 2020.
Two Wisconsin students attending separate schools came to school wearing clothing advocating individual gun rights. School authorities took action against the students for violating the schools’ dress codes. One school rejected a parent’s attempt to provide an alternative t-shirt advocating patriotism.
In 1969, the Supreme Court recognized that students have some protected expressive rights, the denial of which must be supported by evidence that the expression in question materially interferes with school functioning. Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969).
In this case the schools did not focus on disruption but argued that the shirts were not protected because no particularized message was conveyed and some messages were advertisements.
The students assert that even if the shirts were commercial they nonetheless merit First Amendment protections.
While clothing itself is not generally protected, the court has rejected the school’s view that a particular and recognizable message must be present for First Amendment protections to attach. The court noted that while one shire did contain commercial elements, the message concerning the right to bear arms was clear. The court also rejected the argument that the message was not clear because the messages themselves are what precipitated the school’s intervention.
The shirts are entitled to First Amendment protection, the court concluded, but not absolute protection. The dimensions of any proper time and place restrictions remain open for exploration, but judgement that constitutional protection is lacking is denied.