NJ v. Saturday, Friday by Judge William C. Griesbach (ED Wisc.) Included two students who were told by their schools (Shattuck Middle School and Kettle Moraine High School) that they could not wear these shirts:
The districts demanded that they win on legal grounds, not on the grounds that the jerseys were causing a disruption, but on the grounds that The Wisconsin Carry Shirt was just too orange They just weren’t protected by the first change:
The defendants claim that none of the shirts represent a protected language, largely because the shirts do not convey a specific message and because two of the shirts “are merely advertisements for companies that happen to have a picture of a gun”. …
No, said the court:
Clothing bearing explicit messages or symbols intended to convey a political or other message can clearly amount to a speech that entitles the wearer to protect the first change.
The defendants argue that the message being conveyed must be clear and unmistakable in order for any words or images printed on a shirt to be constitutionally protected. But that’s not the law … “”[A] A narrow, concise message is not a condition for the protection of the constitution. “If it were, the first change” would never reach the undeniably shielded painting by Jackson Pollock, the music by Arnold Schöenberg, or the Jabberwocky verse by Lewis Carroll. “
Applying these principles to the pleadings in this case, the court concludes that each of the shirts in question plausibly falls under the protection of the First Amendment. The defendants argue that the Smith & Wesson shirt is not a proprietary language, but rather an advertisement for a company that happens to contain a picture of a firearm. Since it is just the name of a company with a picture of a firearm on a shirt, it is claimed that the shirt does not convey a “special message” so the first change would entitle it to protection. For his part, NJ argues that even if it’s a commercial speech, the shirt still qualifies for some constitutional protection.
Commercial language is “language that proposes a commercial transaction”. When NJ was wearing his Smith & Wesson shirt to school, at least according to the complaint, he was not proposing a commercial transaction. Plaintiffs claim in their complaint that each of them “believes in the value to society of personal gun possession as guaranteed by the Second Amendment”. … [Both the Smith & Wesson shirt and the I’m a Patriot Shirt] intended to convey NJ’s belief in the importance of gun law.
The same goes for the WCI shirt that AL wanted to wear at Kettle Morraine High School. The defendants argue that the WCI shirt is just an advertisement and that the shirt in no way conveys a specific message. They claim that the court should not consider the text from the Wisconsin Constitution on the back of the shirt as it is not included in the description of the shirt included in the appeal. It is clear, however, that “documents attached to a motion for dismissal will be considered part of the pleadings if they are mentioned in the plaintiff’s complaint and are central to his action. Such documents may be reviewed by a district court in a Decision will be examined on the application for dismissal. “
While not strictly a “document”, the WCI shirt is the equivalent and in this case serves the same purpose. The WCI shirt is mentioned in AL’s complaint and is of central importance for its claim. The court is therefore examining the message of the entire shirt and not just the language and the image of a gun on the front of the shirt, although the front appears to be constitutionally protected for the same reason alone as the message conveyed by Smith & Wesson shirt.
Not only did plaintiffs intend to get a clear message across when wearing their shirts, it also appears clear that school authorities understood the message the plaintiffs were trying to convey, at least to the extent that their message was recognized for the right to own guns. School officials reportedly told both NJ and AL that they were not allowed to wear the shirts because of the display of firearms. Based on the allegations in the complaint, it appears at least that the school officials’ response to NJ’s shirts was motivated by the message NJ was trying to convey in a school setting.
Each of the shirts in question is therefore entitled to protection of the constitution. This protection is of course not absolute. Whether the defendants were entitled to prohibit plaintiffs from delivering their messages in the manner and location they chose remains to be determined. However, the defendant’s motion to assess the pleadings on the grounds that the shirts had no constitutional protection is rejected.
Quite right, I think. For more information on K-12 students’ speaking rights, visit: