Wearable speech: T-shirts and the First Amendment
There’s a thin line between free speech and underwear.
According to fashion historians, T-shirts came into vogue in post-World War II America. Some credit James Dean with popularizing the plain white undershirt. By the late 1960s, though, that fashion statement gave way to a political statement. A simple T-shirt became a political force when decorated with a political slogan or motto.
Over the past 30 years, T-shirts bearing messages have been the subject of numerous First Amendment battles, including a recent controversy surrounding two men’s pro-peace T-shirts worn at the Crossgates Mall in Albany, N.Y.
Stephen Downs and his son Roger were told earlier this month to leave the mall or remove T-shirts bearing the slogans: “Peace on earth” and “Give peace a chance.” The father refused to remove his shirt and was charged with trespassing. In response, about 100 demonstrators marched through Crossgates Mall to protest the arrest.
National news coverage gave the managers of Crossgates Mall some new perspective, and they asked that the complaint against Downs be withdrawn.
This wasn’t an isolated incident. Time and again, courts have had to grapple with how much freedom of speech you can wear on your chest:
- Last month, administrators at Dearborn (Mich.) High School told a 16-year-old to remove a T-shirt with the words “International Terrorist” and a picture of President Bush. The school cited tensions associated with a possible war on Iraq.
- The 3rd U.S. Circuit Court of Appeals ruled last October that a New Jersey student had a constitutional right to wear a “Top 10 Reasons You Might Be a Redneck Sports Fan” T-shirt. The school district had maintained that the humorous T-shirt was a violation of its anti-harassment and anti-intimidation policy, but the federal court concluded that the district’s ban on material that might generate “ill will” was unconstitutionally broad. There was no evidence that any of the shirt’s punch lines might prompt actual punches.
- Last April, the U.S. District Court in Fort Wayne, Ind., upheld the right of a school to ban “Insane Clown Posse” T-shirts. The T-shirts — referring to a rap group — posed a disruption to the educational process, the court concluded.
- Last March, the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the right of officials of Van Wert (Ohio) High School to ban T-shirts bearing the name and photo of rocker Marilyn Manson. The court concluded that the T-shirts could be banned because school officials found the clothing to be “vulgar, offensive and contrary to the educational mission of the school.”
- In one of the few T-shirt controversies outside the classroom, city officials in Gary, Ind., mounted a campaign to discourage merchants from carrying T-shirts with the slogan “Scary Gary.” The T-shirts reflected the fact that the city had the nation’s highest per capita murder rate in 1984, 1993 and 1995. In 2001, Gary’s mayor asked staffers to try to persuade shop owners not to carry the shirts, and a city council member called for a boycott of stores selling the shirts.
Of course, there are many who would dismiss this litany of litigation as inconsequential. After all, these courtroom battles over peace slogans or rock band names are hardly the stuff of the Pentagon Papers.
On the other hand, what could be a more telling testimony to First Amendment freedom in America? Many Americans have the confidence to become human billboards, wearing T-shirts emblazoned with a message they hold dear. Only a secure democracy provides that opportunity.
In the end, that’s what makes this nation so special: We can wear our hearts on our sleeves and our opinions on our chests.
Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is: Ken Paulson, First Amendment Center, 1207 18th Ave. S., Nashville, TN 37212