Lewd, Rude, Obscene, and… Violent? Analyzing Student Clothing Depicting Firearms Under the First Amendment’s Obscenity Test

Authors

Luke Gorman

Abstract

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by the United States Supreme Court’s obscene speech analysis. To begin, this Comment instructs schools to clearly define what constitutes a firearm on clothing in their dress code. From this point, courts are to consider whether the image on the clothing meets the definition. If it does, courts should examine whether the image appeals to any violent interests by applying a community standard analysis. Under this analysis, courts should consider factors advanced in the recent Seventh Circuit decision N.J. ex. rel Jacob v. Sonnabend. Finally, courts and schools should consider whether the work is patently violent or lacks serious literary, artistic, political, or scientific value by determining the “undeniable message” that the clothing conveys. This approach effectively puts parents, students, and school officials on notice of what images are allowed within their school, incorporates considerations important to Tinker v. Des Moines Independent Community School District, and fits within a framework that is familiar to federal courts. Additionally, this test will enable courts to balance students’ interests in political speech with schools’ interest in preventing disruption arising from that speech.

Recommended Citation

Luke Gorman, Lewd, Rude, Obscene, and… Violent? Analyzing Student Clothing Depicting Firearms Under the First Amendment’s Obscenity Test, 129 Dick. L. Rev. 721 (2025).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol129/iss2/8