Authored by Zachary Stieber via The Epoch Times,

A middle school student who wore black paint on his face during a California football game is not protected by the U.S. Constitution’s First Amendment, according to a federal judge.

The student, dubbed J.A. in court papers, his parents, and his lawyers have not shown that wearing the black paint is expressive conduct shielded by the First Amendment, U.S. District Judge Linda Lopez said in a Sept. 30 ruling.

J.A. said he put on the paint during the game to show team spirit, but that doesn’t meet the bar established in other rulings, including a 2019 decision that found “First Amendment protection is only granted to the act of wearing particular clothing or insignias where circumstances establish that an unmistakable communication is being made,” Lopez wrote.

“Based on the current record, it is not likely that [the] plaintiff can prevail on the merits of his First Amendment claim, nor are there serious questions about it. It ‘is possible to find some kernel of expression in almost every activity a person undertakes,’ such as ‘walking,’ ’meeting one’s friends,‘ or ’coming together to engage in recreational dancing‘ and other sports, ’but such a kernel is not sufficient to bring the activity within the protection of the First Amendment,’” she added later, citing from other rulings.

J.A. was suspended for two days by Muirlands Middle School, which said he was wearing blackface despite the black paint being used often by athletes, and accused him or his friends of uttering racial slurs during the October 2023 game.

Lopez was denying a request for a preliminary injunction that would have in part removed J.A.’s two-day suspension from school records. The final ruling in the case has not yet been handed down.

The game was at a different school, whose officials forwarded concerns about the incident to Muirlands Middle School officials.

“Just three years ago, the Supreme Court held that schools can only punish students for their off-campus speech in very limited circumstances not present here. The district court never addressed this threshold problem with Muirland Middle School’s actions,” Karin Sweigart, a lawyer with Dhillon Law Group who is representing J.A. and his parents, told The Epoch Times in an email.

“There was no disruption of any kind that would have warranted punishing my client under binding Supreme Court precedent, and that would be true even if my client HAD engaged in a racist act, which he did not. My client had the right to engage in expressive activity by wearing eye black to show spirit on the sidelines of a football game, and we believe he will ultimately be vindicated as the facts come out in this case moving forward.”