Brentwood’s First Amendment impact may be limited

Friday, June 22, 2007

WASHINGTON — The Supreme Court yesterday made a quirky First Amendment case even quirkier.

Ruling in Tennessee Secondary School Athletic Association v. Brentwood Academy, the Court upheld its unusual 2001 decision that the association, which regulates much of interscholastic sports in the state, is a state actor, subject to the First Amendment, even though it receives no state funds.

In spite of that 2001 decision, the Court unanimously upheld the association’s restriction of the speech of Brentwood’s football coach, who was fined for recruiting middle school students in violation of an association rule. Justice John Paul Stevens’ rationale for the Court was that Brentwood voluntarily joined the association and agreed to abide by its rules.

But then, tucked away in a concurring opinion, a rebel faction of conservative justices broke away from Stevens’ opinion to make sure that the Court’s liberals did not used the Brentwood case to expand the rationale for government restrictions on speech.

It would be “ill-advised,” wrote Justice Anthony Kennedy, “to allow free-standing state regulation of speech by coaches.” Chief Justice John Roberts Jr. and Justices Antonin Scalia and Samuel Alito Jr. joined Kennedy’s opinion. And the faction turned into a majority when Justice Clarence Thomas indicated separately that he agreed with Kennedy on that point.

Suddenly, a seemingly unanimous opinion turned into what First Amendment scholar Eugene Volokh called “a fascinating split between the conservative and the liberal justices,” with the conservative justices, as often is the case these days, being more speech-protective than the liberals. Volokh discussed the split on his Volokh Conspiracy blog.

The dispute began 10 years ago when the association punished Brentwood for recruiting letters sent by football coach Carlton Flatt, since retired, to eighth graders. Even though the recipients of the letters had already signaled their intention to attend Brentwood, the association found that the letters violated its rule against using “undue influence” in recruiting middle school students.

The school sued, claiming a First Amendment violation, and the Court in 2001 agreed that because of the state’s “entwinement” with the association it could be regarded as a state actor and therefore subject to lawsuits under the First Amendment. But it sent the case back to lower courts to determine if the association’s treatment of Brentwood actually violated the First Amendment.

The 6th U.S. Circuit Court of Appeals found that the regulation was a content-based regulation of speech that was not narrowly tailored, and struck down the $3,000 fine and four-year probation levied against the school by the association.

The TSSAA brought the case back to the Supreme Court, and yesterday it found that even though the academy does enjoy First Amendment rights, the anti-recruitment rule is a reasonable regulation, because Brentwood voluntarily joined the association and agreed to abide by its rules. The association does not have unbounded authority to restrict the academy's speech, the Court said, but can impose rules that are “necessary to managing an efficient and effective state-sponsored high school athletic league.”

In his opinion for the Court, Stevens also said, “The First Amendment protects Brentwood's right to publish truthful information about the school and its athletic programs. It likewise protects the school's right to try to persuade prospective students and their parents that its excellence in sports is a reason for enrolling. But Brentwood's speech rights are not absolute … .  The First Amendment does not excuse Brentwood from abiding by the same anti-recruiting rule that governs the conduct of its sister schools. To hold otherwise would undermine the principle … that '[h]igh school football is a game. Games have rules.' … . It is only fair that Brentwood follow them.”

But when Stevens went further to find another rationale to support the association’s regulation of Brentwood’s speech, he lost his majority. Stevens invoked a 1978 decision in Ohralik v. Ohio State Bar Association, which upheld the state bar’s punishment of a lawyer for in-person solicitation of clients. “Our cases teach that there is a difference of constitutional dimension between rules prohibiting appeals to the public at large … and rules prohibiting direct, personalized communications in a coercive setting.”

Stevens went on to say that the Ohralik precedent could apply to Brentwood’s recruitment of students. “The dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader,” Stevens wrote. “After all, it is a heady thing for an eighth grade student to be contacted directly by a coach.”

But Kennedy and the Court’s other conservatives objected to Stevens’ invocation of Ohralik, voicing concern that it would provide a rationale for restricting speech even if Brentwood had not voluntarily joined the association.

By relying on Ohralik, Kennedy wrote, Stevens’ opinion “is open to the implication that the speech at issue is subject to state regulation whether or not the school has entered a voluntary contract with a state-sponsored association.” Kennedy also noted that in the past, the high court had refused to extend the Ohralik precedent beyond the attorney-client relationship, such as to solicitation by accountants.

“To allow free-standing state regulation of speech by coaches and other representatives of nonmember schools would be a dramatic expansion of Ohralik to a whole new field of endeavor,” Kennedy wrote. With four other justices joining him on the point, what Kennedy wrote is the majority view.

And it’s the correct view too, says Volokh, a professor at UCLA School of Law. Referring to Stevens’ invocation of Ohralik, Volokh said on his blog, “The liberals' view, if adopted, would have pointed towards considerably broader restrictions on targeted speech.” If the coach’s letter — which Volokh regards as “not terribly coercive” — can be placed in the same category of coercive speech as that of an “ambulance chaser” lawyer, and therefore subject to restriction, Volokh fears that “whole genres of communication” could also be restricted as coercive.

Because of the Kennedy concurrence, the First Amendment impact of yesterday’s Brentwood decision may be limited. It does offer yet another context, albeit limited, in which state actors can limit the speech of individuals. But the fact that five justices also went out of their way to limit the rationale of Justice Stevens' opinion indicates that a majority of the Court did not want a quirky case to turn into a First Amendment landmark.