Is Your T-Shirt Protected by the First Amendment?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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T-shirtsClothing can be protected by the First Amendment right to free speech.

For example, in the 1969 case of Tinker v. Des Moines Independent School District, the US Supreme Court ruled that students were allowed to wear black armbands to protest the US involvement in Vietnam because the act was “akin to pure speech.”

However, the Court didn’t express its views on dress codes in general, saying “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment.”

A federal court in Louisiana ruled that students were also allowed to wear black armbands to protest the adoption of school uniforms.

The Second Circuit held in the Guiles v. Martineau case that a public school student has the right to wear a shirt insulting the President of the United States.

In the Guiles case, the student wore a T-shirt that depicted the head of President George W. Bush with the body of a chicken, alongside three lines of cocaine, a razor blade, and an alcoholic beverage.

Now, the Supreme Court is about to consider arguments about limits to clothing-related free-speech rights.

“Safe Space”

As the New York Times reports, Minnesota has a dress code that applies to polling places. The state says it’s trying to create a “safe space” for democracy.

The state prohibits voters from wearing to polling places t-shirts, hats, or buttons that express any political views.

Minnesota Statute § 211B.II doesn’t define what a “political” message is, but the state has directed election officials to ask that anyone wearing apparel with a political messagee remove it or cover it up.

Voters are allowed to vote regardless of what they’re wearing, but refusing to comply with the law could result in a misdemeanor conviction.

Photo ID

The case arose when the executive director for the Minnesota Voters Alliance was temporarily prevented from voting while wearing a t-shirt with a Tea Party logo and a button that advocated requiring photo IDs for voters.

The Eighth Circuit upheld the law, saying that  “In order to ensure a neutral, influence-free polling place, all political material is banned.”

A dissenting judge objected that that banned shirts included ones promoting “the American Legion, Veterans of Foreign Wars, the National Rifle Association, the A.F.L.-C.I.O. and the N.A.A.C.P.,” according to the Times.

Critics of the law say that it violates the First Amendment, and that voters can be trusted not to be influenced by what others are wearing.

Speech-Free Zone

The Supreme Court will consider whether the Minnesota law is overbroad, making polling places into a “speech-free zone.”

The Court previously upheld a Tennessee law that created a 100-foot buffer zone around polling places, barring campaign signs and posters in the area.

However, the Tennessee law was aimed at campaign materials directly relevant to issues on the ballot, rather than more general “political” messages.

As the Times noted, poll workers may not always know what’s “political”:

In 2012, a young woman wearing an M.I.T. sweatshirt was stopped by a confused Denver poll worker who thought she was electioneering on behalf of Mitt Romney, a presidential candidate.

A supervisor intervened, explaining that the initials on the shirt stood for the Massachusetts Institute of Technology.

“There was only one ‘T,’ so the voter was not electioneering,” Alton Dillard, a spokesman for the Denver Clerk and Recorder’s Office, explained.

The Minnesota case is Minnesota Voters Alliance v. Mansky.

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