Free speech? The case of a 3rd grader’s ‘come and take it’ gun hat

WASHINGTON − The hat a Michigan third grader wore for her school’s “Great Kindness Challenge” in 2022 featured an image of an AR-style rifle and the phrase “come and take it.”

The student said she chose the black baseball cap for Hat Day during the weeklong kindness initiative because it reminded her of her father and she wanted to show support for gun rights.

Officials at Robert Kerr Elementary School in Durand, Michigan, said the hat’s message could be disruptive, particularly for students who had transferred to the district after a school shooting 50 miles away in 2021, the deadliest in the state’s history.

The Supreme Court on June 8 declined to review lower court rulings that the school did not violate the student’s free speech rights by prohibiting the hat.

The court likewise passed up a chance last year to decide whether a Massachusetts school erred by banning a T-shirt saying “There are only two genders.”

Both cases turned on a landmark 1969 case protecting students’ First Amendment rights as long as their speech isn’t too disruptive. In that case, the Supreme Court said a Des Moines high school could not prevent students from wearing black armbands in support of an end to the war in Vietnam.

In 2007, by contrast, the high court said a student in Alaska did not have a First Amendment right to hold up a banner with the message “Bong Hits 4 Jesus.”

In the Michigan student’s unsuccessful appeal, her lawyers argued school officials provided no evidence that the hat was disruptive because their real motivation was to silence a viewpoint with which they disagreed.

“Rather than take the opportunity to convey to a bright, politically aware 8-year-old that her voice and thoughts matter, school officials instead told her to sit down and shut up − presumably because they personally don’t like the Second Amendment or the rights it protects,” lawyers for the student and her father, Adam Stroub, said in the appeal.

Lawyers for the school said that in addition to the concerns about the 2021 school shooting, the school’s dress code prohibits clothes with violent themes.

Both the district court and the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled against the student.

A three-judge panel of the appeals court said the school’s disruption concern was reasonable given the 2021 school shooting, the age of the students and the hat’s provocative message.

When the full appeals court declined to rehear the case, Judge Chad Readler called those factors “a rare confluence of events.”

It’s very unlikely, he said, “that a future First Amendment challenge will weave together a similar factual tapestry.”

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This article originally appeared on USA TODAY: Free speech? The case of a 3rd grader’s ‘come and take it’ gun hat