Divided federal appeals panel rules for school in Marilyn Manson T-shirt case

Monday, July 31, 2000

An Ohio high school student did not have a First Amendment right to
wear T-shirts featuring slogans of the rock band Marilyn Manson to school, a
divided federal appeals court panel has ruled.

On Aug. 29, 1997, Nicolas Boroff wore a Marilyn Manson T-shirt to Van
Wert High School. The front of the shirt depicted a three-faced Jesus with the
words “See No Truth, Hear No Truth, Speak No Truth.” The back of the shirt bore
the word “BELIEVE” with the letters “LIE” highlighted.

A school official informed Boroff that the shirt violated the school’s
dress code policy, which provided that “clothing with offensive illustrations,
drug, alcohol, or tobacco slogans … [were] not acceptable.”

On Sept. 4, the next school day, Boroff wore another Marilyn Manson
T-shirt. His mother met that day with several school officials, who told her
and Boroff that he would not be permitted to attend school if he continued to
wear Marilyn Manson T-shirts. Boroff wore shirts depicting the band’s slogans
for three more days and was sent home each day.

On Sept. 16, Boroff’s mother sued the board of education and school
officials on behalf of her son, alleging a First Amendment violation.

In July 1998, a federal district court granted summary judgment to the
school. On appeal, a divided three-judge panel last week affirmed the lower
court ruling in Boroff v. Van Wert City Board of

The panel majority relied on the 1986 U.S. Supreme Court decision
Bethel School District No. 403 v.
in which the high court ruled that school officials could
censor vulgar or indecent student speech.

“The standard for reviewing the suppression of vulgar or plainly
offensive speech is governed by Fraser,” the panel wrote in its July 26

Boroff had contended that the school officials censored his expression
because they disagreed with the political and religious viewpoints communicated
on the T-shirts.

However, the majority wrote that “the record is devoid of any evidence
that the T-shirts, the ‘three-headed Jesus’ T-shirt particularly, were
perceived to express any particular political or religious viewpoint.”

The majority concluded: “Rather, the record demonstrates that the
school prohibited Boroff’s Marilyn Manson T-shirts generally because this
particular rock group promotes disruptive and demoralizing values which are
inconsistent with and counter-productive to education.”

Judge Ronald Lee Gilman dissented, finding that school officials may
have censored the T-shirts because of their viewpoint.

“Unlike the majority, I believe that a jury could reasonably find that
the reason why school officials declared Boroff’s Marilyn Manson T-shirts
‘offensive’ was because the first Marilyn Manson T-shirt he wore contained a
message about religion that they considered obnoxious.

“This particular T-shirt was found ‘offensive’ because it expresses a
viewpoint that many people personally find repugnant, not because it is
vulgar,” Gillman wrote.

Chris Starkey, Boroff’s attorney, disagreed with the majority’s
decision. “Tinker is the law of the land and this decision does not comport
with Tinker.”

Starkey said he would recommend to his client that they seek a
full-panel review.

Calls to the attorney for the school board were not returned.

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