Litigation Highlight: Guns & Speech

  • Date:
  • May 07, 2021

Last week the Supreme Court held oral argument in a case concerning how the free speech rights of public school students interact with school officials’ authority. The Court’s ruling in that case could have implications for a lawsuit working its way through federal court in Wisconsin. On Monday, a district judge in the U.S. District Court for the Eastern District of Wisconsin ruled against students’ free speech claims in N.J. v. Sonnabend. There, several students challenged school policies that banned depictions of firearms on student clothing.

The two plaintiffs, both middle school students at the time they filed the lawsuit, described themselves as Second Amendment supporters and gun enthusiasts. The principals in each case (the lawsuit arose out of two different schools) interpreted the respective school policies to forbid images of firearms on clothing, whether as part of a pro- or anti-gun message, and did not interpret the policies to cover words or phrases supporting or opposing gun rights. The plaintiff students were asked to cover up the clothing with images of firearms but not disciplined in other ways.

The district court assessed the claims through the First Amendment framework that applies to student speech, deriving principally from Tinker v. Des Moines Independent Community School District and its progeny. Construing the law to require a more relaxed standard when dealing with a viewpoint neutral policy (as the court described the polices at issue), the judge framed the core question as “whether the restriction on student expression is reasonably related to legitimate pedagogical concerns.” The court held that the policies were so related.

The intersection between guns and speech, and the arguments about guns as speech (whether expressively, as in claims made about open carry protests, or literally, as with depictions of guns on T-shirts), are only likely to become more important as the Supreme Court continues fleshing out Second Amendment doctrine. Among many others, Tim Zick, Greg Magarian, Eugene Volokh, Mike Dorf, and most recently Danny Li have written closely about this relationship between First and Second Amendment values. And I have recently detailed in a forthcoming article how states are continuing to expand gun rights outside the Constitution in ways that further escalate the likelihood of conflict and contestation.