Introduction
A politically conservative University of Oklahoma volleyball player irked one of her teammates during a mandatory team meeting about racial justice; she then angered several more by expressing skepticism online about whether “The Eyes of Texas”—a song often sung at University of Texas athletic events—is racist. 1 See McLaughlin v. Univ. of Okla. Bd. of Regents, 566 F. Supp. 3d 1204, 1210 (W.D. Okla. 2021); see also Joe Levin & Ivan Maisel, Behind the Scenes of UT’s ‘The Eyes of Texas’ Controversy, Tex. Monthly (May 2021), https://perma.cc/9JBX-7GJP (discussing the controversy); infra Section II.A (discussing McLaughlin). Those incidents all occurred amidst the national tumult that followed George Floyd’s killing by a Minneapolis police officer in 2020. See generally Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020, 6:49 AM), https://perma.cc/R7VR-MXAT; Morning Edition, Following George Floyd’s Death, Racism Is a Major Topic of Discussion, NPR (June 1, 2020, 7:49 AM), https://perma.cc/68XZ-JSS4. A soccer player at Eastern Kentucky University complained to that school’s athletic director about her coach’s tactics. 2 See Green v. Sandy, No. 10-cv-367, 2011 WL 4688639, at *2–6 (E.D. Ky. 2011) (describing the controversy at Eastern Kentucky University); see also infra Section II.B (discussing Green). Players’ complaints about coaches have provoked free-speech controversies at public high schools, as well. See, e.g., Lowery v. Euverard, 497 F.3d 584, 585–86 (6th Cir. 2007) (describing a controversy within the football program at Tennessee’s Jefferson County High School); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759–62 (9th Cir. 2006) (describing a controversy within the boys’ basketball program at Oregon’s Clatskanie High School). After helping the University of Connecticut win a soccer tournament, an elated player raised her middle finger at a television camera during a national broadcast of the post-game celebration. 3 See Radwan v. Manuel, 55 F.4th 101, 105 (2d Cir. 2022); see also infra Section II.C (discussing Radwan). While sitting in the stands at a University of Georgia football game, a member of that school’s baseball team used a racial slur to refer to one of the Georgia football players on the field. 4 See Sasser v. Bd. of Regents, No. 21-14433, 2023 WL 2446720, at *2 (11th Cir. 2021); see also infra Section II.D (discussing Sasser). Although the U.S. Court of Appeals for the Eleventh Circuit did not provide any details about what the baseball player said, the media reported what apparently happened. See Tramel Raggs, Georgia Baseball Player Dismissed from Team for Allegedly Using Racial Slur During Bulldogs’ Football Game, Wash. Post (Oct. 4, 2018, 7:37 AM), https://perma.cc/6W22-W39Q (reporting that, according to an eyewitness, the baseball player “yelled ‘put the n——— in’ following an early fourth quarter miscue by sophomore starting quarterback Jake Fromm”). The target of the slur was Georgia quarterback Justin Fields. See Raggs, supra; see also Justin Fields, ESPN , https://perma.cc/8S53-ZVZW (stating that Fields later played for Ohio State University and is now a quarterback for the Pittsburgh Steelers).
In each instance, school officials disciplined the student-athletes for their chosen expressions. The politically conservative volleyball player said Oklahoma officials told her that if she remained on the team, she would have to redshirt for a year, practice without her teammates, and undergo diversity, equity, and inclusion training. 5 See McLaughlin, 566 F. Supp. 3d at 1211. A “redshirt” year is one in which a collegiate player practices but does not compete against other teams, and thereby extends his or her eligibility to play an additional year in the future. See Redshirt, Merriam-Webster Dictionary , https://perma.cc/ZU5A-A947. At Eastern Kentucky, university officials kicked the soccer player who criticized her coach off the team and reduced her scholarship assistance. 6 See Green, 2011 WL 4688639, at *5. Leaders at the University of Connecticut took away the finger-raising soccer player’s scholarship and dismissed her from the squad. 7 See Radwan, 55 F.4th at 109–10. Georgia administrators removed the slur-uttering baseball player from the team, barred him from attending the school’s athletic events, told him he could not attend his academic courses in person, and said he could not enter the Georgia campus without first getting special permission. 8 See Sasser v. Bd. of Regents, No. 20-cv-4022, 2021 WL 4478743, at *3 (N.D. Ga. 2021), aff’d, 2023 WL 2446720 (11th Cir. 2021).
All four student-athletes filed lawsuits alleging violations of their First Amendment freedom of speech. 9 See supra notes 1–4 (providing citations). See generally U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”); Gitlow v. New York, 268 U.S. 652, 666 (1925) (stating that the freedoms protected by the Speech Clause “are among the fundamental personal rights and ‘liberties’ protected by the Due Process Clause of the Fourteenth Amendment from impairment by the States”). As this Article argues in Part I, the Speech Clause almost certainly would have shielded them from discipline if they had been ordinary college students unaffiliated with their schools’ athletic programs. 10 See infra Part I. As Part II explains, however, the courts rejected the student-athletes’ claims in three of the four cases. The volleyball player prevailed, 11 See infra Section II.A. but the soccer player dissatisfied with her coach lost her free-speech claim on the merits. 12 See infra Section II.B. The courts in the other two cases ruled that no clearly established First Amendment law for those situations existed, so the defendants were entitled to qualified immunity. 13 See infra Sections II.C, II.D. For more on qualified immunity, see infra notes 135–41 and accompanying text.
To what degree, if at all, does the First Amendment give public colleges and universities greater leeway to regulate student-athlete speech? From a coach’s or administrator’s point of view, good reasons exist to think such leeway is appropriate. Student-athletes’ speech might, for example, damage the speakers’ relationships with their coaches or foster divisions among the speakers’ teammates, making the team’s competitive goals harder to achieve. 14 Cf. Jeff Janssen, 10 Things Teammates Don’t Let Teammates Do in Championship Cultures, Janssen Sports Leadership Ctr. , https://perma.cc/EUE6-YF2R (“Championship Cultures do not survive long if they tolerate teammates who divide or destroy the team from within. . . . Destructive teammates who try to divide the team by creating corrosive cliques or attacking the coaches are culture killers. Their divisive behavior must be quickly called out and crushed.”). A school’s leaders might also fear that listeners will draw damaging conclusions about the attitudes or character traits the school aims to instill. 15 Cf. Rachel Greco, ‘(Expletive) You!’ Chants at MSU Spartan Stadium Concern Alumni, Lansing St. J. (Sept. 11, 2019, 12:25 PM), https://perma.cc/3GD6-DR3L (reporting alumni displeasure with certain fan chants because “that’s not who we are”). The risk of unfavorable inferences might seem especially high when student-athletes make the troublesome statements while wearing their team uniforms or standing on the field of competition. 16 Cf. Frank D. LoMonte, Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Student Athletes’ Speech on Social Media, 9 J. Bus. & Tech. L. 1, 19 (2014) (“Colleges’ interests in enforcing conformity and to preserving [sic] a favorable public image have always created friction with athletes’ interests in freedom of expression.”).
A broad (though not universal) consensus exists among courts and commentators that public postsecondary schools have greater power to regulate student-athletes’ speech than non-athlete students’ speech. 17 See James Hefferan, Picking Up the Flag? The University of Missouri Football Team and Whether Intercollegiate Student-Athletes May Be Penalized for Exercising Their First Amendment Rights, 12 DePaul J. Sports L. Contemp. Probs. 44, 59–60 (2016) (“The jurisprudence that has been produced tends to reflect . . . that student-athletes are subject to greater regulation than ordinary students.”); Meg Penrose, Outspoken: Social Media and the Modern College Athlete, 12 John Marshall Rev. Intell. Prop. L. 509, 545 (2013) (“The majority view among the circuit courts supports stringent limitations on athletes’ speech at state-sponsored schools.”). But see Brian L. Porto, Time to Tinker: A New Standard for Protecting the First Amendment Rights of College Athletes, 13 Harv. J. Sports & Ent. L. 301, 304 (2022) (“This article will contend that college athletes deserve the same treatment as their nonathlete classmates regarding . . . free-speech rights.”). But the extent of that regulatory power is far from clear. Again, in the cases involving the finger-raising soccer player and the slur-uttering baseball player, the courts said the law was sufficiently unsettled and warranted qualified immunity. 18 See supra notes 3–4 and accompanying text. Still, even when the relevant law seems established, what feels like clarity can quickly dissolve into murkiness. Consider, for example, the cases involving the coach-critiquing soccer player and the volleyball player who expressed unpopular views about race. 19 See supra notes 1–2 and accompanying text. Taken together, those rulings suggest that the First Amendment only protects a student-athlete’s political speech, not speech criticizing the student-athlete’s coaches. 20 See infra text following note 172. But suppose a coach is among that state’s highest-paid employees and some of the team’s players believe the coach’s performance is woefully inadequate. 21 Cf. Fred Bowen, Big Money in College Football Pays for Coaching and Not Coaching, Wash. Post (Oct. 13, 2022, 8:00 AM), https://perma.cc/5NLX-WL5Q (stating that, in 2020, “the head college football coach at the state’s public university was the highest paid public employee in 40 of the 50 states”). If the players express the view that their coach is performing poorly and that his or her salary would be better spent on someone else, is that protected political speech because it concerns the job performance of a prominent government employee, 22 Cf. Washington v. Smith, 80 F.3d 555, 557 (D.C. Cir. 1996) (stating that speech concerning the performance of the University of Kansas’ women’s basketball coach was speech “on a matter of public concern”). or is it speech that can be regulated because it questions the coach’s authority and fosters divisions within the program? What if a uniformed player is in the midst of a game and, in response to something she sees in the stands, she yells “fuck Black Lives Matter!” Is that protected political speech, or can the school discipline the student because she made her offensive statement while participating in a school-sponsored activity?
This Article explains in Part III that such questions bring into play two important principles that stand in strong tension with one another: (1) student-athletes are entitled to broad freedom of expression as adult members of postsecondary academic communities, and (2) when the government launches a goal-seeking project and individuals agree to join it, the project’s leaders are entitled to regulate the participants’ speech in ways reasonably calculated to ensure the project’s success. This Article argues in Part IV that the best way to reconcile those two principles is by drawing lessons from the First Amendment law of public employment. Public colleges and universities should not face First Amendment restrictions when regulating the speech that student-athletes are required to produce as members of their respective teams. 23 See infra Section IV.B.2. For all other student-athlete speech, a school should be permitted to impose restrictions only when the student-athlete’s interests in producing the expression are outweighed by the school’s interests in ensuring that their teams compete at peak capacity on gamedays and in securing compliance with articulated standards of sportsmanship. 24 See infra Sections IV.B.2, IV.B.3. In Part V, I demonstrate how the proposed analysis would work in each of the four cases introduced in this Article’s opening paragraph.
I. The Speech Rights of Ordinary Students
If ordinary college students express themselves like the Oklahoma volleyball player, the Eastern Kentucky and Connecticut soccer players, or the Georgia baseball player, 25 See supra notes 1–4 and accompanying text. the First Amendment’s Speech Clause almost certainly protects them from school discipline. Half a century ago, the U.S. Supreme Court recognized that its “precedents . . . leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” 26 Healy v. James, 408 U.S. 169, 180 (1972). And in circumstances like those in our four illustrative cases, the protection that the Speech Clause affords to adults in the larger community is robust.
A. Unpopular Statements About Race
Consider, first, the speech that got the volleyball player into hot water at the University of Oklahoma. 27 See supra note 1 and accompanying text. If ordinary students at a public university anger classmates by expressing unpopular views about race—whether in the classroom or elsewhere—the First Amendment bars the school from disciplining the speakers on those grounds alone. 28 Content-based restrictions on speech are usually permissible only if they can survive strict scrutiny. See Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015) (stating that content-based speech restrictions are “subject to strict scrutiny”); id. at 172 (stating that a content-based speech restriction survives strict scrutiny only if the government can “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest”) (internal quotation marks omitted). Two of the Speech Clause’s core functions are to assure “unfettered interchange of ideas for the bringing about of political and social changes desired by the people” and to protect people’s ability to talk about issues of interest in their communities, 29 Roth v. United States, 354 U.S. 476, 484 (1957). regardless of whether the speech reflects great ignorance or whether many find the message outrageous. 30 See Masterpiece Cakeshop Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018) (“[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”); Snyder v. Phelps, 562 U.S. 443, 458–59 (2011) (explaining that “outrageous[ness]” is a constitutionally unacceptable basis on which to restrict speech); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Boos v. Barry, 485 U.S. 312, 322 (1988) (“As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”) (internal quotation marks omitted); Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (“‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”); FCC v. Pacifica Found., 438 U.S. 726, 745 (1978) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”); Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975) (“[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”); Street v. New York, 394 U.S. 576, 592 (1969) (“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”). Speech about issues of race in America certainly falls within those parameters. As the Federal Circuit Court of Appeals put it in a 2015 ruling, “cultural and political discussions about race and society . . . are within the heartland of speech protected by the First Amendment.” 31 In re Tam, 808 F.3d 1321, 1331 (Fed. Cir. 2015), aff’d sub nom. Matal v. Tam, 582 U.S. 218 (2017).
Even children enrolled at public K-12 schools enjoy substantial freedom to address controversial issues. As the Court explained in the 1969 case Tinker v. Des Moines Independent Community School District, 32 393 U.S. 503 (1969).
any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. 33 Id. at 508–09. The Tinker Court held that students at public junior high and high schools had a First Amendment right to wear black armbands to express opposition to the Vietnam War because school officials had no “reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students.” Id. at 509; see also infra notes 107–09 and accompanying text (discussing Tinker).
What is true for K-12 schoolchildren is at least as true for college adults. The fact that an ordinary college student expresses unpopular views about race when speaking with other students is simply not a constitutionally permissible basis for punishment. As Justice Samuel Alito wrote for a plurality in 2017, “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” 34 Matal v. Tam, 582 U.S. 218, 246 (2017) (plurality opinion) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).
B. Criticism of Coaches
Students at public colleges and universities similarly have a right to freely discuss the performance of their schools’ athletic coaches, including the coaches’ performance with respect to the things that the Eastern Kentucky soccer player found lacking in her head coach. 35 See supra note 2 and accompanying text. Coaches’ professional successes and failures are matters of public concern in campus communities, matters about which the First Amendment gives individuals wide latitude to speak without fear of government reprisals. 36 See Washington v. Smith, 893 F. Supp. 60, 63 (D.D.C. 1995) (concluding that the performance of college coaches and athletic teams is a matter of public concern), aff’d, 80 F.3d 555 (D.C. Cir. 1996); cf. City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (explaining that speech is on a matter of “public concern” when it addresses “a subject of legitimate news interest”). After all, a public university’s coaches are public employees—often paid in whole or in part with tax revenues or tuition dollars—and their coaching methods, successes, and failures can have financial, reputational, and other sorts of consequences for players, players’ families, recruits, students, school administrators, the school itself, local businesses, and anyone else with a stake in the school’s athletic fortunes. 37 See, e.g., McGarry v. Univ. of San Diego, 64 Cal. Rptr. 3d 467, 476–77 (Dist. Ct. App. 2007) (describing reasons why individuals had a right to speak publicly and critically about the performance of the University of San Diego’s head football coach). Social media and op-ed pages are sometimes aflame with criticism of coaches after big losses, and college students can throw their own logs on those fires, confident that the First Amendment does not permit their schools to punish them in return.
C. Profane Gestures
The First Amendment also protects college students who—like the Connecticut soccer player 38 See supra note 3 and accompanying text. —profanely raise their middle fingers while attending collegiate athletic contests. 39 See generally Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1403 (2008) (tracing the history of the gesture and arguing that, in most instances, it is constitutionally protected expression). Those students did not always enjoy such expressive freedom when attending school events: teachers and administrators at public K-12 schools have significant power to discipline students who express themselves profanely when under school supervision because one of those schools’ important functions is to teach students “the boundaries of socially appropriate behavior.” 40 See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681–82 (1986) (“It does not follow . . . that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school.”); id. at 683 (“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”); id. at 685 (holding that officials at public K-12 schools need not tolerate “offensively lewd and indecent speech”). But even in the K-12 realm, the First Amendment places limits on school officials’ reach. In Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), a high school student, who was disappointed with her fortunes on her softball team and in her school’s cheerleading program, posted an online photograph of herself and a friend at the local Cocoa Hut, their “middle fingers raised” with the caption “Fuck school fuck softball fuck cheer fuck everything.” Id. at 2043. The Court ruled that, for numerous reasons, the First Amendment shielded the student from school discipline. See id. at 2046–48 (listing reasons for the student’s First Amendment victory). Perhaps the most relevant reason for our purposes here is the Court’s observation that the student had “uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.” Id. at 2046–47. For a brief discussion of Mahanoy, see Todd E. Pettys, Constructing Students’ Speech Rights, from College Admissions to Professional Schools, 59 San Diego L. Rev. 229, 230–32, 283–84 (2022). But once students leave the K-12 world behind and enter the adult world, the First Amendment landscape changes. Unless the profane speech amounts to “fighting words” or other legally significant facts join the mix, the government cannot punish adults for expressing themselves in ways others find provocative or offensive. 41 See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (observing that “one man’s vulgarity is another’s lyric” and holding that the government cannot ban the word “fuck” from adult discourse in public spaces); see also supra note 30 (citing comparable authorities). “Fighting words” are words that a speaker directs to another person or group and are likely to provoke the speaker’s audience to respond with immediate violence. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73 (1942); see also Texas v. Johnson, 491 U.S. 397, 409 (1989) (explaining that fighting words are words that a reasonable person would take as “an invitation to exchange fisticuffs”). The Chaplinsky Court indicated that fighting words also include words that “by their very utterance inflict injury.” 315 U.S. at 572. That portion of the Chaplinsky formulation has since been abandoned. See Purtell v. Mason, 527 F.3d 615, 623–25 (7th Cir. 2008) (describing the doctrine’s evolution). In a 2021 case involving a driver who raised a middle finger at a police officer, for example, the Eighth Circuit Court of Appeals recognized that this “rude and offensive gesture . . . is a constitutionally protected speech activity.” 42 Garcia v. City of New Hope, 984 F.3d 655, 669 (8th Cir. 2021). Indeed, the court said this application of First Amendment principles is so clearly established that an officer who takes retaliatory action against the profane gesture’s maker cannot successfully raise the defense of qualified immunity. 43 Id. at 670; accord Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (“Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”).
What about a student at a college football game who, like the Georgia baseball player, 44 See supra note 4 and accompanying text. directs a racial epithet at one of the players on the field—does the First Amendment shield even this speaker from government-imposed discipline? Though the answer here will take a little more time to explain, yes, the First Amendment probably does protect the speaker, notwithstanding the ignorant and hateful nature of the speech. A public university could make some arguments in a bid to knock down free-speech objections to punishment on these facts, but those arguments likely come up short. I consider five such arguments here.
First, the school might simply say that it will not tolerate racial epithets at its athletic events. If the school casts its argument this way, we face an unadorned content-based restriction on speech. 45 See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”). Such restrictions are generally permissible only if they can survive strict scrutiny, 46 See id. (“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”). and the Court has made clear that the compelling justification that strict scrutiny requires cannot be supplied merely by a desire to shield listeners from speech they find objectionable. 47 See supra note 30 and accompanying text (citing authorities). As the Court recently put it in 303 Creative LLC v. Elenis, 48 143 S. Ct. 2298 (2023). “the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided and likely to cause anguish or incalculable grief.” 49 Id. at 2312 (internal quotations omitted); id. at 2321 (“A commitment to speech for only some messages and some persons is no commitment at all.”); cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .”). When officials at the University of Mississippi wanted to stop fans from unfurling large Confederate flags at home football games, for example, they recognized that the First Amendment would not allow them to single that flag out for exclusion based on its racial connotations. 50 See Mike Herndon, Ole Miss, Like South Carolina, Struggled to Shed Symbolism of Confederate Flag, AL.com (June 22, 2015, 8:45 PM), https://perma.cc/69X5-YN83 (reporting that the school’s chancellor “did not believe he had the authority to prevent [the flag’s] use by students or others not officially representing the university” because to do so would bring “First Amendment concerns into play”). Instead, they adopted content-neutral regulations, limiting the size of any flag that fans could bring into the stadium and barring fans from carrying pointed objects of any kind, including sticks to attach flags. 51 See id. (explaining the school’s strategy); see also Barrett v. Khayat, No. 97CV211, 1999WL 33537194, at *3, *15 (N.D. Miss. Nov. 12, 1999) (rejecting a First Amendment challenge to the school’s size and stick restrictions). The same logic holds true for racial slurs: such expression cannot be banned at public athletic events merely on the undeniably true grounds that many listeners will find the speech morally repellent.
Second, a public institution wishing to punish fans who utter racial slurs at sporting events might invoke the fighting-words doctrine, the strand of First Amendment law that says the government need not tolerate speech directed towards a particular person or group and likely to provoke the target audience to respond with immediate violence. 52 See supra note 41 and accompanying text (briefly discussing the fighting-words doctrine). To the degree that the fighting-words doctrine remains a viable part of the modern Court’s First Amendment jurisprudence, 53 The doctrine might be falling out of favor on the Court. See, e.g., Counterman v. Colorado, 143 S. Ct. 2106, 2116 n.4 (2023) (“This Court has not upheld a conviction under the fighting-words doctrine in 80 years. At the least, that doctrine is today a poor candidate for spinning off other First Amendment rules.”). Some commentators have argued for the doctrine’s rejection. See, e.g., Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should Be Overruled, 88 Marquette L. Rev . 441, 445 (2004). there certainly are instances when it blocks those who utter racial slurs from successfully claiming the First Amendment’s protection. 54 See, e.g., State v. Liebenguth, 250 A.3d 1, 14–18, 21–22 (Conn. 2020) (invoking the fighting-words doctrine to uphold the conviction of a man who yelled racial slurs at a parking-enforcement official). But the doctrine will likely fail to find a foothold in circumstances like those at the Georgia football game where the baseball player got himself into trouble in the stands. 55 See supra note 4 and accompanying text (referencing the Georgia incident). Given the distance that typically separates fans and players in athletic venues and the physical obstacles those individuals would face if they tried to get quickly within striking distance of one another, it is difficult to say that the speech is likely to prompt the intended target to respond with the kind of immediate violence that the fighting-words doctrine seeks to prevent. Courts routinely find that even fairly small distances between speakers and their targets are sufficient to enable society to expect those who receive anger-provoking speech to cool down before getting within swinging distance of the speaker. 56 See Michael J. Mannheimer, The Fighting Words Doctrine, 93 Colum. L. Rev . 1527, 1554 (1993) (“Insulting language must be spoken in close physical proximity to the addressee to be considered fighting words. Otherwise, the burden is on the addressee to ‘cool off.’”); see also, e.g., In re Nickolas S., 245 P.3d 446, 447, 452–53 (Ariz. 2011) (noting twice that the speaker and his target were ten feet apart, then finding for several reasons that the speech did not amount to fighting words); In re Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn. 1978) (“With the words spoken in retreat from more than 15 feet away rather than eye-to-eye, there was no reasonable likelihood that they would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person.”); City of Billings v. Nelson, 2014 MT 98, ¶ 23, 374 Mont. 444, 322 P.3d 1039 (“The potential to elicit an immediate violent response exists only where the communication occurs face-to-face or in close physical proximity.”); Hershfield v. Commonwealth, 417 S.E.2d 876, 877–78 (Va. Ct App. 1992) (finding the fighting-words doctrine inapplicable because the speaker and the target of the speech were separated by fifty-five or sixty feet and a fence). Absent a risk of an immediate violent response from the target of the epithet—the kind of response that might erupt when two antagonists stand face-to-face—the fighting-words doctrine does not come into play. 57 See supra note 41.
Third, a public university faced with an epithet-uttering fan at a football game might claim prerogatives as the property owner and declare that the government will not tolerate such language in its facilities, just as private individuals can refuse to tolerate speech that they find objectionable when hosting visitors in their own homes or yards. As many readers already know, courts will categorize government property that might serve as a venue for expression as one of four different types of forums for purposes of First Amendment analysis. A given piece of government property might be a public forum, such as a sidewalk, streetcorner, or park, which has a long history of being used for public expression; it might be a designated public forum, which is not inherently a public forum but which the government has decided to treat as if it were; it might be a limited public forum, which is not inherently a public forum but which the government has decided to open for expression on specified topics or expression by specified groups of people; or it might be a nonpublic forum, which does not have a history of use for public expression and which the government has not opened for any such purpose. 58 See Pleasant Grove City v. Summum, 555 U.S. 460, 469–70 (2009) (describing public, designated public, and limited public forums and the First Amendment rules that apply there); Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885–86 (2018) (describing nonpublic forums and the First Amendment rules that apply there).
Absent unusual facts, a public university’s football stadium is best classified as a limited public forum. 59 Accord Clay Calvert & Robert D. Richards, Fans and the First Amendment: Cheering and Jeering in College Sports, 4 Va. Sports & Ent. L.J. 1, 16 (2004); Howard Wasserman, Fans, Free Expression, and the Wide World of Sports, 67 U. Pitt. L. Rev. 525, 532 (2006); cf. Frierson v. Reinisch, 806 Fed. App’x 54, 58 (2d Cir. 2020) (“[W]here, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as a ‘limited public forum.’”). Unlike sidewalks, streetcorners, and parks, a football stadium does not have a long history of serving as a venue where members of the public can go to express themselves on any subject. Likewise, government leaders are not likely to designate a university’s stadium as a place that the public can freely use in that way. A football stadium is also not a nonpublic forum. Everyone understands that fans are there in part to holler about the contest playing out on the field in front of them; indeed, the home team hopes the crowd will be vocal in ways that help them win the game, and the stadium’s signage operators might even post some cheering suggestions (e.g., “Defense!”). 60 But see Louis M. Benedict & John D. McMillen, Free Expression versus Prohibited Speech: The First Amendment and College Student Sports Fans, 15 J. Legal Aspects Sport 5, 19–20 (2005) (failing to recognize the existence of limited public forums for First Amendment purposes and arguing that “a university athletic venue remains a nonpublic forum when used for official college athletic events regardless of its permitted use at other times”). When athletic events are underway, football stadiums are thus best seen as limited public forums, open for speech by ticketholders who wish to voice their responses to the action they see on the field.
In a limited public forum, speech restrictions are permissible if they are “reasonable in light of the purpose served by the forum” and do not “discriminate against speech on the basis of its viewpoint.” 61 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (internal quotation omitted); see also Pleasant Grove City, 555 U.S. at 470 (“[A] government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral.”). The desire to remove racial slurs from athletic events is surely reasonable: such speech is likely to powerfully disturb many within earshot and thereby distract attention from the athletic contest that fans paid to see. But would a ban on racial epithets also be viewpoint-neutral? Probably not. A speech restriction is not viewpoint neutral if it “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includable subject.” 62 Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985); see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (“The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”). Because fans at football games are routinely permitted to speak about the players and actions they are watching, the government’s ownership of the property does not entitle it to silence those whose speech reveals that they see the players and their actions through a racist lens. 63 Cf. Matal v. Tam, 582 U.S. 218, 243 (2017) (plurality opinion) (finding that a federal law impermissibly discriminated based on viewpoint when it restricted speech that “disparage[d]” people); Ison v. Madison Local Sch. Dist., 3 F.4th 887, 894 (6th Cir. 2021) (finding that a regulation impermissibly discriminates based on viewpoint if it “prohibit[s] speech purely because it disparages or offends”); Sons of Confederate Veterans v. Glendening, 954 F. Supp. 1099, 1104 (D. Md. 1997) (“The First Amendment does not countenance such viewpoint discrimination, even for the purpose of suppressing speech that may be perceived as racially degrading or hostile.”). Courts have sometimes upheld bans on racial epithets that disrupt the events in which they are uttered. See, e.g., Dyer v. Atlanta Indep. Sch. Sys., 426 F. Supp. 3d 1350, 1359–62 (N.D. Ga. 2019) (discussing disruption of school board meetings). A fan’s use of racial epithets in a football stadium, however, would not ordinarily disrupt the progress of the football game. Racial epithets express a viewpoint—a morally outrageous one, to be sure, but a viewpoint nevertheless. If fans are using those epithets to talk about the same subjects that others at the event may address, then banning that racist speech amounts to viewpoint discrimination, something that the government’s prerogatives as a property owner do not allow.
Fourth, a university wishing to ban racial slurs at athletic events might seek shelter in the concepts of hostile work and learning environments. As a matter of federal statutory law, neither employers nor educational institutions that receive federal funds can remain unresponsive to work or learning environments that are hostile on grounds of race, among other specified traits. 64 With respect to employers, see Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for employers “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65–66 (1986) (confirming that one form of discrimination forbidden by Title VII is “hostile environment” harassment). With respect to educational institutions, see Title VI of the Civil Rights Act of 1964 § 601, 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); Title IX of the Education Amendments of 1972 § 901, 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643–51 (1999) (describing the circumstances under which schools may be liable under Title IX for tolerating student-on-student harassment); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 n.5 (3d Cir. 2001) (“Although . . . Davis dealt with sexual harassment under Title IX, we believe that [its] reasoning applies equally to harassment on the basis of the personal characteristics enumerated in Title VI and other relevant federal anti-discrimination statutes.”). For an introduction to all these authorities, see Todd E. Pettys, Hostile Learning Environments, the First Amendment, and Public Higher Education, 54 Conn. L. Rev . 1, 6–23 (2022). Would tolerating a student’s utterance of a racial slur at a collegiate athletic contest amount to a violation of this legislation, such that the school risks statutory liability if it fails to intervene? 65 Even if such speech does give rise to statutory liability, the Court still has not been as clear as one might like about the degree to which the First Amendment permits government officials to regulate speech on those grounds. The First Amendment probably does permit such regulation, but the Court has not yet squarely spoken to the issue. See Pettys, supra note 64 (discussing the relationship between the First Amendment and hostile-environment legislation and arguing that the First Amendment does permit government officials to regulate speech on these grounds in limited instances). Some scholars have cautiously encouraged institutions to consider regulating speech on these grounds, 66 Calvert & Richards, supra note 59, at 32 (“At this stage, there is no precedent for using a hostile environment analysis to justify restrictions on offensive language at public university sporting events. Nonetheless, the argument may be worth using to defend future regulatory schemes if those regulations are challenged by fans wanting to express themselves in offensive ways.”). but the argument ultimately lacks force, at least on facts like those involving the Georgia baseball player. Hostile-environment liability arises only when, both objectively and subjectively, 67 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). the harassing speech is “sufficiently severe or pervasive to alter the conditions of the victim’s employment [or education] and create an abusive working [or educational] environment.” 68 Meritor Sav. Bank, 477 U.S. at 67 (alteration and internal quotation marks omitted); see also Davis, 526 U.S. at 651 (citing Meritor Savings Bank for the proposition that a school is liable under Title IX only for deliberate indifference to harassment that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities”). The Supreme Court has already said that isolated utterances of racial epithets fail to create the kind of “severe” and “pervasive” harassment that federal legislation prohibits. 69 See Meritor Sav. Bank, 477 U.S. at 67 (approvingly citing a lower court for the proposition that the “‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’ would not affect the conditions of employment to sufficiently significant degree to violate Title VII”) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.”). An isolated incident like the one involving the Georgia student-athlete likely falls short of the statutory threshold. 70 Cf. Calvert & Richards, supra note 59, at 32 (“[I]t is questionable whether the actions of obstreperous students during a single two-hour game . . . really constitute the type of repeated conduct necessary for an environmental claim.”).
Finally, a public university wishing to punish those who use racial slurs at athletic events might invoke the captive-audience doctrine. 71 Cf. Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 Duke L.J. 484, 505–06 (suggesting that students in college classrooms might be captive audiences for First Amendment purposes, but acknowledging that, even if they are, any speech regulations must still be viewpoint neutral); Gregory Matthew Jacobs, Comment, Curbing Their Enthusiasm: A Proposal to Regulate Offensive Speech at Public University Basketball Games, 55 Cath. U. L. Rev. 547, 565–72 (2006) (arguing that the captive-audience doctrine can be used to restrict offensive speech at collegiate basketball games in order to protect children in attendance and fans watching or listening to broadcasts of the games in their homes); Melissa Weberman, Note, University Hate Speech Policies and the Captive Audience Doctrine, 36 Ohio N.U. L. Rev. 553, 576 (2010) (arguing that “[s]tudent dormitories, walkways to and from the classroom, and the classroom itself are those settings in which hate speech may be permissibly regulated [pursuant to the captive-audience doctrine as the author envisions it]”). In most instances, the First Amendment requires people to look away or plug their ears if they want to avoid a protected expression that they find objectionable. 72 See Snyder v. Phelps, 562 U.S. 443, 459 (2011) (stating that the First Amendment usually “does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer”) (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 210 (1975)); Erznoznik, 422 U.S. at 210 (“The plain, if at times disquieting, truth is that in our pluralistic society, . . . we are inescapably captive audiences for many purposes.”) (internal quotation marks omitted). In Cohen v. California, 403 U.S. 15, 21 (1971), for example—the case famously featuring a man walking through a California courthouse wearing a jacket emblazoned with the words “Fuck the Draft”—the Court upheld the war-protestor’s right to speak, reasoning that people in the courthouse who found the speech objectionable “could effectively avoid further bombardment of their sensibilities simply by averting their eyes. In limited circumstances, however, the captive-audience doctrine marks an exception to that constitutional norm, giving government officials greater power to regulate offensive speech when people cannot easily avoid it. 73 See Frisby v. Schultz, 487 U.S. 474, 487 (1988) (“The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.”); Calvert & Richards, supra note 59, at 18 (“[P]ublic universities instituting content-based restrictions on spectator expression at sports events should attempt to justify them in terms of protecting the well-being of minors in the audience—a captive-audience situation . . . —from offensive language.”); id. at 23–25 (briefly developing that argument).
Centering one’s case on the captive-audience doctrine is a strategy rife with uncertainty, however, because the Court has never clearly spelled out the doctrine’s reach. 74 See Erwin Chemerinsky, Constitutional Law: Principles & Policies 1087 n.286 (5th ed. 2015) (“The ‘captive audience doctrine’ is a concept that is raised in a number of cases, but its significance has never been defined by the Court.”); Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev. 939, 951 (2009) (“The precise contours of the captive audience doctrine are uncertain, and the Supreme Court cases are far from consistent.”); Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 89–106 (1991) (describing conflicts, tensions, and uncertainties in the Court’s captive-audience cases). At the extremes, of course, most of us likely share some basic intuitions. Most would probably agree, for example, that the First Amendment does not give someone the right to stand outside your living room window and endlessly holler unwanted messages at you through the glass; such behavior conflicts with common conceptions of the home as one’s sanctuary. 75 Cf. Esposito v. New Britain Baseball Club, Inc., 895 A.2d 291, 302 (Conn. Super. Ct. 2005) (“Loss of peace and quiet in one’s home, which has traditionally been viewed as a place of refuge and comfort from the outside world, is a serious injury, the economic value of which is not readily quantified.”). Most people, likewise, would probably agree that more than a sense of captivity is required to bring the doctrine into play; otherwise, the doctrine would blow too large a hole in established First Amendment principles. The First Amendment right of the streetcorner preacher to tell stories of sin and salvation, for example, is presumably not diminished because some of the people within earshot are doing things they cannot easily abandon, such as eating dinner outside at a nearby restaurant, standing in line at the neighborhood’s only ATM, earning a paycheck by painting a nearby building, waiting in the spot where they have agreed to meet friends, or doing anything else that ties them to that particular location for a stretch of time. “[W]e are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech,” 76 Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 738 (1970). But cf. Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 72 (1983) (distinguishing the facts in Rowan from situations in which the government impermissibly acts on its own initiative—rather than at the request of homeowners—to stop the flow of potentially offensive mailings into homes). the Court has said, and “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.” 77 Cohen, 403 U.S. at 21.
As Chief Justice John Roberts observed in his opinion for the Court in Snyder v. Phelps, 78 562 U.S. 443 (2011). the Court today “applie[s] the captive audience doctrine only sparingly.” 79 Id. at 459. Our best guidance for the doctrine’s narrow application still comes from the Court’s half-century-old explanation that the government is permitted to intervene to shield captive audiences from unwanted speech only if “substantial privacy interests are being invaded in an essentially intolerable manner.” 80 Cohen, 403 U.S. at 21. Early in the doctrine’s development, privacy interests did not as clearly predominate, a fact best illustrated by Lehman v. Shaker Heights, 418 U.S. 298 (1974). In Lehman, the Justices were unable to form a majority when presented with a city rule that barred candidates for public office from purchasing some of the available advertising space on public-transit vehicles. A four-member plurality led by Justice Harry Blackmun found the rule permissible, reasoning (in relevant part) that the city was entitled to spare its captive-audience riders from exposure to unwanted speech. Id. at 304 (Blackmun, J., announcing the judgment of the Court). Justice William Douglas also voted to uphold the city’s rule, reasoning that political candidates have “no right to force their message upon an audience incapable of declining to receive it.” Id. at 307 (Douglas, J., concurring in the judgment); cf. Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 468 (1952) (Douglas, J., dissenting) (“The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice.”). As one might imagine from that formulation, the places and circumstances where the doctrine applies are few, with homes and medical-care facilities serving as paradigmatic examples. 81 Lower courts have sometimes insisted that the captive-audience doctrine remain limited to those settings. See, e.g., Phelps-Roper v. Nixon, 545 F.3d 685, 691–92 (8th Cir. 2008) (emphasizing the analytic uniqueness of the home and refusing to extend the doctrine to areas surrounding funerals); Anderson v. Spear, 356 F.3d 651, 660–61 (6th Cir. 2004) (noting the Supreme Court’s restriction of the doctrine to homes and healthcare clinics and refusing to extend it to polling places). Other times, lower courts have narrowly extended the doctrine to unique settings like welfare offices and funerals. See e.g., Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 149 (2d Cir. 2004) (“Welfare claimants are a captive audience in the Job Center waiting rooms.”); Families Achieving Indep. & Respect v. Neb. Dep’t of Soc. Servs., 111 F.3d 1408, 1421–22 (8th Cir. 1997) (extending the doctrine to protect people seeking financial assistance at welfare offices “because of the welfare recipients’ unfortunate stations in life and because of the captive nature of their attendance at the welfare office”); McQueary v. Stumbo, 453 F. Supp. 2d 975, 992 (E.D. Ky. 2006) (“[F]or purposes of this Opinion, the Court will assume that the state has an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid.”); cf. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 210 (3d Cir 2001) (then-Judge Alito stating in dicta that “as some courts and commentators have suggested, speech may be more readily subject to restrictions when a school or workplace audience is ‘captive’ and cannot avoid the objectionable speech”). In Rowan v. United States Post Office Department, 82 397 U.S. 728 (1970). for example, the Court rejected a mass-mailer’s objection to a federal regulation that blocked the delivery of specified kinds of mailings to people who had told postal authorities they did not want such materials delivered to their homes. 83 Id. at 736–37 (“[I]t seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.”); cf. FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (“Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”). In Frisby v. Schultz, 84 487 U.S. 474 (1988). the Court held that an abortion-performing doctor could invoke an anti-picketing ordinance to prevent abortion opponents from protesting outside his home. 85 Id. at 487 (“The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech.”); cf. Cohen v. California, 403 U.S. 15, 21–22 (1971) (finding that a man walking through a courthouse with the words “Fuck the Draft” on his jacket presented “nothing like the interest in being free from unwanted expression in the confines of one’s own home”). In Madsen v. Women’s Health Center, 86 512 U.S. 753 (1994). the Court upheld portions of an injunction that barred anti-abortion picketers from congregating around the entrances to abortion clinics to press their message upon women who were seeking medical treatment and did not wish to hear the protestors’ speech. 87 See id. at 768 (expressing support for the lower court’s finding that abortion-seeking women were rendered “captive” by virtue of their “medical circumstance[s]”). Even here, in a medical context where privacy interests are arguably very high, the Court found the captive-audience doctrine limited in scope. The Court held that anti-abortion protestors did not first need to obtain the consent of the abortion-seeking women before orally attempting to strike up a conversation with them as they walked toward abortion clinics for treatment. See id. at 773–74. In Hill v. Colorado, 88 530 U.S. 703 (2000). the Court upheld a state’s restriction on protests and advocacy near the entrances to all health-care facilities, reasoning (in relevant part) that many patients “are in particularly vulnerable physical and emotional conditions.” 89 Id. at 729. The Court said the state had a “substantial and legitimate interest in protecting these persons from unwanted encounters, confrontations, and even assaults.” 90 Id.
There certainly is a plain-English sense in which ticketholders at athletic events are captive listeners for the speakers who surround them—to avoid the speech, they must either plug their ears or abandon the seats they purchased. The Court has said, however, that the captive-audience doctrine prevents invasions of “substantial privacy interests,” and—while the Court has not told us much about the meaning of “privacy” in this context 91 See Strauss, supra note 74, at 106–08 (discussing the vagueness of the term “privacy” in this setting). But the term is not entirely vacuous. See e.g., Corbin, supra note 74, at 952 (“While there are four separate common law torts for invasion of privacy, it is the ‘intrusion upon seclusion or solitude’ that is most relevant to the captive audience doctrine.”). —voluntarily attending a public athletic event is a far cry from sitting in the seclusion of one’s home or entering a healthcare facility to obtain treatment. 92 Accord Wasserman, supra note 59, at 570 (“[T]he captive-audience doctrine never has been applied to listeners in public places of recreation and entertainment, public forums to which people voluntarily go to engage in expressive activity, such as watching and cheering the game.”); cf. Corbin, supra note 74, at 951 (concluding that “privacy interests are more likely to be found in places traditionally considered sacrosanct (like the home) or in places people are forced by circumstances to attend (like public transportation or medical facilities”). Not surprisingly, lower courts have found the captive-audience doctrine inapplicable to speech in entertainment venues of comparable sorts. In Kuba v. 1-A Agricultural Ass’n, 93 387 F.3d 850 (9th Cir. 2004). for example, the Ninth Circuit Court of Appeals found that “the patrons of the Cow Palace”—a performance arena in San Francisco—were not captive for First Amendment purposes because they did not need the government’s protection from unwanted speech in ways comparable to individuals seeking treatment at medical facilities. 94 See id. at 861 n.10. The same court later drew a similar distinction in Berger v. City of Seattle, 95 569 F.3d 1029 (9th Cir. 2009). finding that individuals “waiting in line or having lunch outdoors in a public park” are not captive because they are not “particularly vulnerable.” 96 Id. at 1054–55.
Absent a reimagining of the captive-audience doctrine, one cannot confidently advise public universities that the First Amendment permits them to punish ordinary students for uttering racial slurs at athletic events. 97 Cf. Strauss, supra note 74, at 116 (“Mere offensiveness is not enough to warrant protection for an individual under the captive audience doctrine. Some specific and definable harm attributable to the offensiveness must be demonstrated.”). Unless case-specific facts bring the fighting-words doctrine or some other First Amendment principle into play, it is primarily upon education and social pressure that we must rely—not the force of law—to keep such hateful language out of the bleachers. 98 For comparison, consider a 2014 incident at the University of Oklahoma, where members of a fraternity were caught on video singing a blatantly racist song that contained the n-word. The university promptly expelled the students. See Manny Fernandez & Richard Pérez Peña, As Two Oklahoma Students Are Expelled for Racist Chant, Sigma Alpha Epsilon Vows Wider Inquiry, N.Y. Times (Mar. 10, 2015), https://perma.cc/C3KX-P5SM. Several First Amendment scholars concluded (rightly, in my view) that the expulsions violated the students’ free-speech rights, notwithstanding the patently abhorrent nature of the students’ expression. See Mary-Rose Papandrea, The Free Speech Rights of University Students, 101 Minn. L. Rev. 1801, 1801 n.3 (2017) (citing positions taken by Eugene Volokh and others); Matt Pearce, Is University of Oklahoma Frat’s Racist Chant Protected by 1st Amendment?, L.A. Times (Mar. 10, 2015, 6:10 PM), https://perma.cc/6XWV-4ARG (citing positions taken by Erwin Chemerinsky and others).
II. The Adjudicated Speech Rights of Four Student-Athletes
Although the First Amendment would protect ordinary college students in circumstances comparable to the four described in this Article’s opening paragraph, courts often regard student-athletes as a different story. Indeed, only one of those four student-athletes prevailed on their First Amendment claims against school officials.
A. Unpopular Statements About Race
In McLaughlin v. University of Oklahoma Board of Regents 99 566 F. Supp. 3d 1204 (W.D. Okla. 2021). —the case in which Oklahoma officials disciplined one of their volleyball players after she expressed opinions about race that some of her teammates found objectionable 100 See supra note 1 and accompanying text (noting McLaughlin). —the district court found that the player asserted a valid First Amendment claim. 101 See McLaughlin, 566 F. Supp. 3d at 1212–15. In fact, the court said, the free-speech principles those officials allegedly disregarded were so well established that the officials were not entitled to qualified immunity. 102 See id. at 1215–17. The qualified-immunity defense is available to government officials when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For more on that defense, see infra notes 134–42 and accompanying text.
Kylee McLaughlin had expressed her views in two different venues: online, where she posted emojis depicting an amused clown and a skull and crossbones to express skepticism about the claim that “The Eyes of Texas” is a racist song, and in a mandatory team meeting about racial justice. 103 See McLaughlin, 566 F. Supp. 3d at 1210. The court said the plaintiff posted the emojis “on an ESPN website,” see id., while the press reported that she posted them in a retweet of an ESPN tweet about the controversy at Texas. See Chandler Engelbrecht, OU Volleyball: Former Sooner Setter Kylee McLaughlin Suing Program Over Exclusion; Says Team Branded Her Conservative Views Racist, OU Daily (June 3, 2021), https://perma.cc/4RNJ-F2NM. In the mandatory team meeting about racial justice, the team’s members were asked to share their responses to a documentary film about the incarceration of African-Americans; the plaintiff said she thought the film had a liberal bias and she evidently questioned some of the film’s arguments. See Engelbrecht, supra; Yaron Steinbuch, Ex-Oklahoma Volleyball Player Labeled a Racist for Conservative Views: Lawsuit, N.Y. Post (June 4, 2021, 10:18 AM), https://perma.cc/Z7H5-F5WE. The court addressed those two expressions separately.
With respect to McLaughlin’s online commentary on “The Eyes of Texas,” the court drew a comparison to Mahanoy Area School District v. B.L., 104 141 S. Ct. 2038 (2021). in which the U.S. Supreme Court ruled that officials at a public high school violated the First Amendment rights of one of their students when they disciplined her for posting an image on social media depicting herself and a friend with their middle fingers raised and with the caption: “Fuck school fuck softball fuck cheer fuck everything.” 105 Id. at 2043; see also infra notes 275–77 and accompanying text (discussing Mahanoy). If that kind of speech is constitutionally shielded from discipline when disseminated by a high school student on social media, the McLaughlin court tersely reasoned, then a college student doubtlessly has a First Amendment right to post non-profane emojis to express her views about the race-related nature of a popular song. 106 See McLaughlin v. Univ. of Okla. Bd. Of Regents, 566 F. Supp. 3d 1204, 1213 (W.D. Okla. 2021).
With respect to the comments McLaughlin made during a team meeting, the court relied primarily on two well-known Supreme Court opinions: Tinker v. Des Moines Independent Community School District and Hazelwood School District v. Kuhlmeier. 107 484 U.S. 260 (1988). In Tinker, the Court held that junior high and high school students had a right to wear black armbands to school as a means of expressing opposition to the Vietnam War. 108 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504, 513–14 (1969). In reaching that conclusion, the Court declared that K-12 officials can regulate student speech when they reasonably believe the speech “would substantially interfere with the work of the school or impinge upon the rights of other students.” 109 Id. at 509. The Court held that the students’ black armbands presented no such risk of disruption. See id. at 514. In Hazelwood, the Court ruled that K-12 officials can regulate the speech of students participating in school-sponsored activities where the speech is “disseminated under [the school’s] auspices” 110 See Hazelwood, 484 U.S. at 271–72. —such as the speech of journalism students working on their high school newspaper, as in Hazelwood itself—so long as those restrictions “are reasonably related to legitimate pedagogical concerns.” 111 Id. at 272–73.
The McLaughlin court concluded that those precedents weighed decisively in Kylee McLaughlin’s favor. Without elaboration, the court said that McLaughlin had not “presented her opinions in a disruptive manner” and that Oklahoma’s coaching staff did not have “a legitimate pedagogical interest in policing the political opinions of the team’s members.” 112 McLaughlin v. Univ. of Okla. Bd. of Regents, 566 F. Supp. 3d 1204, 1214 (W.D. Okla. 2021); cf. Hysaw v. Washburn Univ., 690 F. Supp. 940, 946 (D. Kan. 1987) (“The court will not place the interests of participants in a university extracurricular activity [here, college football] above the rights of any citizen [here, African-American football players alleging racial prejudice within the football program] to speak out against alleged racial injustice without fear of government retribution.”). The court thus ruled that McLaughlin enjoyed the First Amendment’s protection. 113 McLaughlin, 566 F. Supp. 3d at 1219.
B. Criticism of Coaches
In Green v. Sandy 114 No. 10-cv-367, 2011 WL 4688639 (E.D. Ky. 2011). —the case in which officials at Eastern Kentucky University kicked a soccer player off the school’s team and reduced her scholarship after she complained about her head coach 115 See supra note 2 and accompanying text (noting Green). —the district court found no First Amendment violation. In the court’s judgment, Eastern Kentucky officials “could reasonably have forecast” that Ashley Green’s criticisms of her coach, Lindsay Basalyga, would disrupt the school’s soccer program. 116 See Green, 2011 WL 4688639 at *16. The court devoted only a brief passage to that First Amendment analysis and so, for a deeper understanding of the court’s apparent thinking, one must turn to the case on which the court most prominently relied—the Court of Appeals for the Sixth Circuit’s 2007 ruling in Lowery v. Euverard. 117 497 F.3d 584 (6th Cir. 2007).
Lowery involved high school football players who were dismissed from their team after they circulated a petition seeking their head coach’s removal and then refused to apologize to him for doing so. 118 Id. at 585–86. The players said the coach had “struck a player in the helmet, threw away college recruiting letters to disfavored players, humiliated and degraded players, used inappropriate language, and required a year-round conditioning program in violation of high school rules.” Id. at 585. The Court of Appeals for the Sixth Circuit said that Tinker governs such situations, 119 Id. at 596; see also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (holding that public-school officials can regulate student speech if they reasonably believe the speech will lead to “substantial disruption of or material interference with school activities”); see supra notes 108–09 and accompanying text (discussing Tinker). so the question was whether it was reasonable for school officials “to forecast that the petition would disrupt the team.” 120 Lowery, 497 F.3d at 593. For two reasons, the court found that standard easily met. First, the Lowery court found that “the petition threatened team unity” by “divid[ing] players into two camps, those who supported [the coach] and those who didn’t.” 121 Id. at 594–95. Although the impact of such divisions on a team’s performance is “impossible to quantitatively measure,” the court reasoned, there is no doubt that “team chemistry . . . is instrumental in determining a team’s success.” 122 Id. at 595. The court said the First Amendment would not allow school officials to dismiss players from a team merely for expressing “political views that were unpopular with [their] teammates,” but it assured readers that “[n]othing of the sort” had happened here. 123 Id. at 600.
Second, the petition “necessarily undermine[d the coach’s] ability to lead the team” by challenging his “authority.” 124 Id. at 594; cf. Wildman v. Marshalltown, 249 F.3d 768, 771–72 (8th Cir. 2001) (rejecting the First Amendment claim of a high school basketball player who was kicked off her team after she sent her teammates a letter complaining about one of the coaches and then refused to apologize for doing so); Marcum v. Dahl, 658 F.2d 731, 734–35 (10th Cir. 1981) (rejecting the First Amendment claims of players on the University of Oklahoma women’s basketball team after they were stripped of their scholarships for complaining publicly and privately about their head coach). On athletic teams, the Court of Appeals for the Sixth Circuit said, “Execution of the coach’s will is paramount” and “[t]he ability of the coach to lead is inextricably linked to his ability to maintain order and discipline.” 125 Lowery v. Euverard, 497 F.3d 584, 594 (6th Cir. 2007) (quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1190 (6th Cir. 1995)). Although the players had a First Amendment right to speak out against the football coach, they did not have a First Amendment right to remain on the team while doing so. 126 See id. at 600. The court drew a comparison to First Amendment principles that govern the speech of government employees: as citizens, those employees can criticize their supervisors, but they cannot always expect “to continue working for the supervisor[s] whose authority [they have] challenged.” 127 Id. at 599 (citing Connick v. Myers, 461 U.S. 138 (1983)); see also id. at 600 (“Clearly, the Supreme Court would reject out of hand the argument that a government employee has a First Amendment right to attempt to have his or her employer fired. It would make little sense, legal or otherwise, to confer an analogous right upon high school student athletes.”). In Connick, an assistant district attorney had circulated a petition among her coworkers raising questions about the wisdom of some of their boss’s decisions. The Court found such speech to be within the supervisor’s constitutionally permissible reach. See Connick, 461 U.S. at 141, 154.
In Green, the district court found the appellate court’s reasoning in Lowery dispositive. 128 See Green v. Sandy, No. 10-cv-367, 2011 WL 4688639, at *14–16 (E.D. Ky. 2011). (citing Lowery six times). Ashley Green had challenged Coach Basalyga by complaining about her to university leaders, and “EKU administrators could reasonably have forecast that [Green’s] criticism of Basalyga’s methods and decisions would disrupt the team.” 129 Id. at *16. Like the high school football players in Lowery, Green was “‘free to continue her campaign against the coach,’ but what she was not free to do was continue to play the sport for that coach while actively working to undermine the coach’s authority.” 130 Id. (quoting Lowery, 497 F.3d at 600) (alteration-signaling brackets omitted).
C. Profane Gestures
In Radwan v. Manuel 131 55 F.4th 101 (2d Cir. 2022). —the case in which the University of Connecticut revoked Noriana Radwan’s soccer scholarship and kicked her off the team after she raised a middle finger at a television camera during the team’s postgame celebration 132 See supra notes 3, 7 and accompanying text. —the Court of Appeals for the Second Circuit held that Connecticut officials were entitled to qualified immunity. 133 See Radwan, 55 F.4th at 105. But the court stopped short of determining whether those officials had actually violated Radwan’s First Amendment rights. 134 See id.
Qualified-immunity analysis consists of two questions: (1) whether the defendant violated a federal statutory or constitutional right possessed by the plaintiff and (2) whether the right that the plaintiff claims was violated was “clearly established at the time of the challenged conduct.” 135 Reichle v. Howards, 566 U.S. 658, 664 (2012). Courts can choose which of those two questions to take up first, 136 See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). and so—if they start with the second question and conclude that the plaintiff’s asserted right was not clearly established—they can avoid unnecessarily deciding whether the plaintiff did indeed suffer a violation of a federal right. 137 See id. at 241 (explaining that a rigid rule requiring court to address the legal merits of constitutional claims any time the defense of qualified immunity is raised would “depart[] from the general rule of constitutional avoidance and run[] counter to the older, wiser judicial counsel not to pass on questions of constitutionality . . . unless such adjudication is unavoidable”) (internal quotation omitted). That is the path the court took in Radwan. 138 See Radwan v. Manuel, 55 F.4th 101, 114 (2d Cir. 2022) (“Here on the First Amendment claim, we proceed directly to step two and hold that qualified immunity applies and, thus, avoid the ‘[u]nnecessary litigation of constitutional issues’ at step one.”) (quoting Pearson, 555 U.S. at 237).
A federal right was “clearly established” at the relevant point in time if existing precedent “placed the statutory or constitutional question beyond debate,” 139 Radwan, 55 F.4th at 114 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). such that “every reasonable official would have understood that what he is doing violates that right.” 140 Radwan, 55 F.4th at 114 (quoting Reichle, 566 U.S. at 664). The Supreme Court has cautioned that, when defining the law that must have been clearly established for the plaintiff to overcome the qualified-immunity defense, a court should define the law in a manner “particularized to the facts of the case,” rather than frame it “at a high level of generality.” 141 White v. Pauly, 580 U.S. 73, 79 (2017) (internal quotation marks omitted). The Court of Appeals for the Second Circuit thus said that, in Noriana Radwan’s case, the question was whether “a student-athlete at a university, while in public and on a playing field, [has a First Amendment right] to make a vulgar or offensive comment or gesture without suffering disciplinary consequences.” 142 Radwan, 55 F.4th at 114. The court determined that, even if Radwan did possess such a right, that right was not clearly established. 143 Id. at 105.
The court based that conclusion on three primary grounds. First, Radwan’s argument failed to persuade the court that her victory was dictated by the Supreme Court’s 1973 ruling in Papish v. Board of Curators of the University of Missouri. 144 410 U.S. 667 (1973) (per curiam); see Radwan, 55 F.4th at 118. In Papish, the Court found that a university student possessed a First Amendment right to distribute a newspaper on campus even though the paper contained a cartoon “depicting policemen raping the Statue of Liberty” and an article titled “M———f——— Acquitted.” 145 Papish, 410 U.S. at 667–68. Radwan argued that Papish clearly established her right to make vulgar gestures without fear of school discipline, but the Court of Appeals for the Second Circuit disagreed. The court said obvious differences exist between a college student’s speech in a newspaper unaffiliated with the student’s school and a college student’s speech while appearing “as an athlete on the university’s sports team, wearing the university’s jersey, during a university sports event.” 146 Radwan, 55 F.4th at 119. In the appellate court’s judgment, those two cases were not sufficiently similar for the adjudicated rights of the first student to “clearly establish[]” the rights of the second. 147 Id. at 118.
Second, Radwan insisted that public colleges and universities do not possess the same speech-regulating latitude that the Supreme Court’s ruling in Hazelwood gives public K-12 schools, 148 See supra notes 110–11 and accompanying text (discussing Hazelwood); Radwan, 55 F.4th at 119. but the Court of Appeals for the Second Circuit said this remains an open question. Recall that the Hazelwood Court held that, when reasonably trying to achieve legitimate pedagogical aims, a public K-12 school may regulate “student speech that is disseminated under its auspices.” 149 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271–73 (1987). Hazelwood concerned the speech of high school students who worked on the school newspaper as part of a journalism class in which they were enrolled. See id. at 262–64. When explaining that conclusion, the Court cited pedagogical concerns and the risk that students’ speech would be attributed unfavorably to the school itself. 150 See id. at 271–74. Hazelwood reserved judgment on “whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level,” 151 Id. at 273–74 n.7. and lower courts have spoken inconsistently on the question, with some (including the Court of Appeals for the Second Circuit) still not having spoken to it at all. 152 See Radwan v. Manuel, 55 F.4th 101, 120 (2d Cir. 2022) (noting authorities from other jurisdictions, as well as the silence of the Second Circuit Court of Appeals on the issue). Moreover, the Radwan court said, no court in any jurisdiction has held that a public college or university cannot try to ensure that its student-athletes demonstrate “good sportsmanship while representing the school” by disciplining those who produce “vulgar or offensive language/expressions while wearing the school’s uniform at a school-sponsored athletic competition.” 153 Id. at 121. Given “the lack of any consensus among other courts on this issue,” the Second Circuit Court of Appeals wrote, “we conclude that the defendants are entitled to qualified immunity.” 154 Id. at 122. The court said the fact that the soccer player made the middle-fingered gesture during a television broadcast had no bearing on its decision. See id. n.12.
In Sasser v. Board of Regents 155 No. 21-14433, 2023 WL 2446720 (11th Cir. 2023) (per curiam). —the case involving University of Georgia baseball player Jonathan Sasser, who was disciplined for using a racial slur to refer to one of that school’s black football players during a football game 156 See supra notes 4, 8 and accompanying text. —the Court of Appeals for the Eleventh Circuit found that Georgia officials were entitled to qualified immunity. 157 Sasser, 2023 WL 2446720, at *5, *11. The Georgia player was certainly not the first student-athlete to get in trouble with his college or university for using the n-word. See Penrose, supra note 17, at 532–34 (describing four such instances). Like the Second Circuit Court of Appeals in Radwan, 158 See supra Section II.C. the appellate court opted against ruling on whether Sasser’s First Amendment rights had been violated. 159 Sasser, 2023 WL 2446720, at *5, *9, *11.
In the proceedings below, the district court’s First Amendment analysis had been remarkably cursory, and the judge did not expressly attach any legal significance to the fact that the speaker was affiliated with one of the university’s athletic programs. The district court found that the case was controlled by the Supreme Court’s 1986 ruling in Bethel School District No. 403 v. Fraser. 160 478 U.S. 675 (1986); see Sasser v. Bd. of Regents, No. 20-cv-4022, 2021 WL 4478743, at *14–16 (N.D. Ga. 2021). In Fraser, the Court ruled that a public high school did not violate the First Amendment when it disciplined one of its students for giving a sexually crude (but non-obscene) speech during a student assembly. 161 See Fraser, 478 U.S. at 677–78, 687. The Fraser Court rejected the suggestion that “simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school.” 162 Id. at 682. The Court explained that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” 163 Id. at 683. since schools are attempting to “teach[] students the boundaries of socially appropriate behavior” and thereby prepare them for effective participation in civil society. 164 Id. at 681.
In the district court’s apparent view, the fact that Sasser was an adult enrolled at a university rather than a minor enrolled at a K-12 school was irrelevant. Making no distinction between adults and children, the court recited several passages from Fraser and then reasoned that
[Sasser] used a racially offensive term to describe a fellow student and did so in front of other students at a school sponsored, on-campus event. Sasser’s conduct . . . resembles the underlying conduct in Fraser . . . . Defendants were well within their authority as educators to discipline Sasser for this speech. The Court need not find that Sasser’s statement was harassing or threatening to come to this conclusion.
Disciplining Sasser for using a racial slur around a crowd of students while attending a school event, therefore, was not a constitutional violation, let alone one so clearly established that “every reasonable school official in the same circumstances would have known in light of the preexisting law that his actions violated First Amendment rights.” 165 Sasser, 2021 WL 4478743, at *16–17 (quoting Denno v. Sch. Bd. of Volusia Cnty., 218 F.3d 1267, 1272 (11th Cir. 2000)). The district court distinguished the Supreme Court’s then-recent ruling in Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), observing that the high-school student’s profane speech in that case had been uttered off campus, whereas the Georgia baseball player had used the racial epithet “on school grounds.” Sasser, 2021 WL 4478743, at *14, n.38. For more on Mahanoy, see supra notes 104–05 and infra notes 275–77 and accompanying text.
The district court concluded that Sasser failed to state a viable First Amendment claim and that the defendants were entitled to qualified immunity. 166 Sasser, 2021 WL 4478743, at *17; see also supra notes 135–41 and accompanying text (discussing qualified immunity).
The Court of Appeals for the Eleventh Circuit affirmed solely on qualified-immunity grounds, reasoning that even if Sasser did suffer a violation of his First Amendment right to speak, his right to utter the racial slur in those circumstances was not clearly established. 167 Sasser v. Bd. of Regents, No. 21-14433, 2023 WL 2446720, at *5 (11th Cir. 2023). The court said Sasser had not identified any case in which a court with jurisdiction in Georgia had ruled that a college student suffered a First Amendment violation when being disciplined “for using a racial slur on campus during a school-sponsored event.” 168 Id. at *9. Sasser had invoked the Supreme Court’s ruling in Papish (the case involving the college student who was unconstitutionally disciplined for distributing a profanity-laced newspaper on campus), 169 See supra notes 144–45 and accompanying text (discussing Papish). but the Court of Appeals for the Eleventh Circuit said—without any further elaboration—that “[t]he facts of that case were materially different from this case and thus cannot defeat qualified immunity.” 170 Sasser, 2023 WL 2446720 at *9. As for Fraser, Sasser argued that the case was irrelevant because it involved a K-12 student rather than an adult, but the court was unmoved, simply reiterating that “Sasser has not pointed to a factually similar case that ‘truly compels . . . the conclusion . . . that [the] Defendant[s] violated [his] federal rights.’” 171 See id. at *10–11 (quoting Evans v. Stephens, 407 F.3d 1272, 1282 (11th Cir. 2005) (en banc)). The court acknowledged that there are other ways to overcome the qualified-immunity defense but said that Sasser had not successfully deployed them. See id. at *7 n.2 (“Plaintiffs can also satisfy the ‘clearly established’ prong by pointing to ‘a broader, clearly established principle that should control the novel facts of the situation,’ or by demonstrating that ‘the conduct involved in the case may so obviously violate the constitution that prior case law is unnecessary.’ . . . Sasser does neither here.”) (quoting Terrell v. Smith, 668, F.3d 1244, 1255 (11th Cir. 2012)).
Like the district court below, the Court of Appeals for the Eleventh Circuit did not attach any significance to Sasser being a student-athlete. Instead, the court appeared to conclude that there was not yet clearly established law (in that jurisdiction, at least) barring postsecondary officials from disciplining any adult student who utters a racial slur during an on-campus school-sponsored activity. 172 See Sasser, 2023 WL 2446720 at *9–11.
If we relied solely on the four principal case studies on which this Article has focused, our guidance for public postsecondary schools and their student-athletes might proceed as follows. The First Amendment protects student-athletes when they make political statements in a non-disruptive manner, but it does not give them the right to criticize their coaches while on those coaches’ teams. The First Amendment might or might not protect student-athletes who profanely express themselves while in uniform and on the field of competition, but—at least so far as the precedents in place today are concerned—if school officials opt to discipline those students, they can probably win on the defense of qualified immunity. Similarly, the First Amendment might or might not protect any postsecondary student who utters a racial slur during an on-campus, school-sponsored event, but school officials today probably enjoy qualified immunity if they discipline students for expressing themselves in that way.
The Court of Appeals for the Eleventh Circuit’s decision in Sasser is likely mistaken insofar as it suggests that, on the merits, the First Amendment might permit public colleges and universities to discipline any student who uses a racial slur while attending one of those schools’ athletic contests. 173 See supra Section II.D (discussing Sasser). The thrust of the modern Supreme Court’s First Amendment jurisprudence runs to the contrary. 174 See supra Section I.D (discussing racial slurs uttered by ordinary postsecondary students). But let us set that point aside and treat the court’s ruling as if it spoke more narrowly to the free-speech rights of student-athletes. Our synthesis of the four cases still leaves us with important problems.
As indicated earlier, 175 See supra notes 19–22 and accompanying text. for example, the line between student-athletes’ protected political speech and student-athletes’ criticism of coaches is not clear, at least when the criticism is cast as an evaluation of the job performance of high-profile government employees. Line-drawing problems await us in other situations, as well. In Lowery v. Euverard—the appellate ruling on which the district court in Green v. Sandy relied when holding that Eastern Kentucky officials could discipline one of their soccer players for complaining about her head coach 176 See supra Section II.B (discussing Green’s reliance upon Lowery). —the court assured readers that “a coach could not dismiss a player simply because the player had religious or political views that were unpopular with his teammates.” 177 Lowery v. Euverard, 497 F.3d 584, 600 (6th Cir. 2007). But that same court stressed that “team unity” is often critical to team success, and speech that divides a team’s “players into two camps” can thus threaten to undercut the team’s competitive performance. 178 See id. at 594–96. What does the First Amendment say, then, when a coach believes that disagreements about presidential politics or some other indisputably political matter are eroding players’ bonds with one another, prompting the coach to want to restrict players’ conversations about those matters?
We also have unresolved questions concerning the scope of athletic programs’ cognizable regulatory interests. With respect to cases akin to those involving racial slurs or raised middle fingers, for example, can coaches and administrators rely upon principles of sportsmanship or decorum when regulating the speech of their student-athletes? Does wearing the team jersey or being present on the field of play render those adults more susceptible to regulation? Are even the most widely recognizable student-athletes entitled to full First Amendment protection when dressed in street clothes and out on the town, or does their widely perceived affiliation with the school’s athletic program place their speech more firmly within the school’s regulatory reach?
III. Two Guiding Principles
Two First Amendment principles loom large in our resolution of these issues. The first concerns the government’s speech-regulating prerogatives when it launches an endeavor and recruits willing citizens to help achieve the endeavor’s goals. The second focuses on student-athletes’ expressive interests as college students.
A. Voluntary Participation in Government-Run Initiatives
When the government launches a goal-seeking endeavor and people voluntarily choose to participate in it, the First Amendment gives the endeavor’s leaders broad latitude to regulate participants’ speech in ways reasonably calculated to further the project’s success. Cases concerning the free-speech rights of government employees and students in K-12 and postsecondary curricular settings illustrate that principle nicely. The principle, by extension, has significant implications for the effort to better define the constitutional lay of the land in athletic programs at public colleges and universities.
1. The Principle Illustrated in Public Employment
In government workplaces, managers have broad leeway to regulate the speech of their employees to ensure that the workplaces’ functions are satisfactorily executed. Under Garcetti v. Ceballos, 179 547 U.S. 410 (2006). government employees’ job-performing speech—speech that employees produce to carry out their job responsibilities, such as answering the telephone or leading a meeting—gets no First Amendment protection. 180 See id. at 421 (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). If a supervisor concludes that one of her employees is not generating the kind of job-executing speech the supervisor believes her unit needs, the Speech Clause poses no obstacle if the supervisor wants to reassign, demote, or fire the employee accordingly.
Even when an employee’s speech is not job-performing, supervisors possess substantial power to respond adversely if they reasonably believe the speech will harm the workplace’s operations. Government employees’ non-job-performing speech gets no First Amendment protection when it addresses a matter of mere private concern, 181 In Connick v. Myers, 461 U.S. 138, 147 (1983), the Court said in dictum that, in “the most unusual circumstances,” the First Amendment will protect government employees’ speech on “matters of only personal interest.” In subsequent cases, however, both the Court and lower courts have proceeded on the premise that such speech gets no First Amendment protection at all. See, e.g., City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (finding that no further First Amendment analysis is required when the government responds adversely to speech produced by one of its employees on a matter of mere private concern); Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) (quoting Garcetti, 547 U.S. at 418) (“If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, ‘the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.’”). and, when the speech is on a matter of public concern, 182 Speech is on a matter of public concern when it addresses “a subject of legitimate news interest.” City of San Diego, 543 U.S. at 83–84. That is, speech is on a matter of public concern when it addresses “any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146. courts conduct the balancing test that the Court famously prescribed in Pickering v. Board of Education. 183 391 U.S. 563 (1968). Under the Pickering analysis, a court weighs the employee’s interest in speaking on the given topic, on the one hand, and the government’s interest “in promoting the efficiency of the public services it performs through its employees,” on the other. 184 Id. at 568; see also City of San Diego, 543 U.S. at 82 (stating that the employee’s interest in speaking on matters of public concern must be balanced against “the government employer’s right to protect its own legitimate interests in performing its mission”). If a government employee’s speech greatly damages his or her working relationships with supervisors or otherwise undercuts the unit’s work, a court thus might find that the employer may take responsive action against the speaker even if the speech concerned a matter of interest to the surrounding community.
In Connick v. Myers, 185 461 U.S. 138 (1983). for example, the Court found that an assistant district attorney had spoken on a matter of public concern when she asked her coworkers whether they felt pressured to work on their supervisor’s reelection campaign. 186 Id. at 149. The Court nevertheless held that the supervisor could reassign the speaker to a less coveted set of responsibilities in response to the speaker’s poll because the supervisor “reasonably believed [the speech] would disrupt the office, undermine his authority, and destroy close working relationships.” 187 Id. at 140, 154. Of course, sometimes the balance tilts in the employee’s favor. In Rankin v. McPherson, for example, the Court reiterated that government employees’ interest in speaking on matters of public concern can be outweighed by managerial interests if the employee’s speech “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” 483 U.S. 378, 388 (1987). On the facts of the case before it, however, the Rankin Court found a First Amendment violation: a constable had fired a clerical worker for crudely expressing her opposition to some of the Reagan Administration’s policies, and the government had failed to show any real way in which the worker’s statement threatened to disrupt working relationships or otherwise undermine the work of the office. See id. at 388–92.
2. The Principle Illustrated in Public Education
The First Amendment landscape awaiting adults who enroll at public colleges and universities is similar in one important respect: the instructors who supervise the students’ academic work will have the power to prescribe the speech required to complete the coursework, and they will have broad discretion to respond positively or negatively to that speech to ensure the success of the pedagogical endeavor that the students chose to join. That arrangement should not feel new to college freshmen. When those students were younger and enrolled at public K-12 schools, the First Amendment allowed school officials to regulate their speech in ways that—as the Court put it in Hazelwood—were “reasonably related to legitimate pedagogical concerns.” 188 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988); see also supra notes 110–11 and accompanying text (discussing Hazelwood). The same holds true for students’ curricular speech at public colleges and universities. 189 The Hazelwood Court reserved judgment on whether deference to school authorities is also appropriate in cases concerning the speech of adult college students, see Hazelwood, 484 U.S. at 273 n.7, but numerous lower courts have since held that it is. See, e.g., O’Neal v. Falcon, 668 F. Supp. 2d 979, 986–87 (W.D. Tex. 2009) (holding that a communications professor had a legitimate pedagogical reason to refuse to allow one of his students to choose abortion as the topic for her required class speech, because the professor “had a legitimate concern that permitting speeches on this topic would be disruptive and would improperly shift the focus of the lesson to the topic of abortion rather than to communication skills”). Of course, Hazelwood-style deference to college officials comes with the caveat that regulations that are appropriate for K-12 students may not always be appropriate for adults in college settings. See, e.g., Hosty v. Carter, 412 F.3d 731, 734–35 (7th Cir. 2005) (concluding “that Hazelwood’s framework applies to subsidized student newspapers at colleges,” but emphasizing that college students’ ages should “come into play” when determining “the reasonableness of the asserted pedagogical justification”); Axson-Flynn v. Johnson, 356 F.3d 1277, 1280, 1289 (10th Cir. 2004) (applying Hazelwood to a dispute concerning a college student’s speech in a theater class and stating that the “[a]ge, maturity, and sophistication level of the students” should be considered when determining whether Hazelwood’s deferential requirements have been satisfied). As the Court has explained, judges should “show great respect” for college faculty members’ “academic decision[s]” and should not “override [such a decision] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 190 Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985). In Collins v. Putt, 191 979 F.3d 128 (2d Cir. 2020). for example, the Court of Appeals for the Second Circuit refused to second-guess a professor’s decision to delete comments that one of her students had posted on a message board as part of a class assignment. 192 See id. at 131. The court found that the professor could have reasonably concluded that the student’s post did not address the assigned topic and threatened to counterproductively divert classmates’ attention toward the author’s critique of the assignment itself. 193 See id. at 134.
Whether at K-12 or postsecondary institutions, why does the First Amendment permit instructors to wield this power over their students’ curricular speech? As Justice Alito explained in a 2021 concurring opinion, the answer rests (at least in part) with express or implied consent. 194 See Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2051–54 (2021) (Alito, J., concurring). When parents enroll a child in a public K-12 school, they “consent on behalf of the child to the relinquishment of some of the child’s free-speech rights.” 195 Id. at 2051. Indeed, one key measure of whether a given K-12 speech regulation is constitutionally permissible is whether the children’s parents “can reasonably be understood to have delegated to the school the authority to regulate the speech in question.” Id. at 2054. When those schoolchildren become adults with the full capacity to manifest consent through their own decisions and then enroll at a college or university, they implicitly surrender to their instructors the power to regulate their curricular speech in whatever ways those instructors reasonably deem pedagogically appropriate for the courses that the students opt to take. 196 See id. at 2051 (stating that adults who enroll in a postsecondary educational program “implicitly consent” to have their speech regulated in ways that are appropriate for “orderly instruction”). When college students sign up to study French, for example, they release any First Amendment objection they would otherwise have to the teacher’s requirement that they “speak French” and “answer the teacher’s questions” during class sessions. 197 Id. In this way, these students are comparably situated to government employees: if they do not want the government to wield this mission-driven, speech-regulating power over them, they can simply choose not to enter the relationship that renders such regulation permissible.
College instructors’ pedagogical prerogatives include not only the power to prescribe and evaluate the speech that their students must produce as part of the learning process, but also the power to restrict student speech that would unreasonably disrupt the instructors’ classroom agenda. Here, we find a confluence of two First Amendment rivers: the line of cases flowing from Hazelwood (cases that allow speech regulations based on reasonable pedagogical judgments) and the line of cases shaped by the Court’s watershed ruling in Tinker. 198 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); see also supra notes 108–09 and accompanying text (discussing Tinker). The Tinker Court held that teachers and administrators at public K-12 schools do not violate the First Amendment when they discipline a student for speaking in ways they reasonably believe could “substantially interfere with the work of the school or impinge upon the rights of other students.” 199 Tinker, 393 U.S. at 509. Courts today sometimes debate Tinker’s role in postsecondary settings, 200 See, e.g., Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1127 n.6 (11th Cir. 2022) (noting unresolved questions concerning Tinker’s application in college settings); McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 247 (3d Cir. 2010) (“At a minimum, the teachings of Tinker . . . and other decisions involving speech in public elementary and high schools, cannot be taken as gospel in cases involving public universities. Any application of free speech doctrine derived from these decisions to the university setting should be scrutinized carefully, with an emphasis on the underlying reasoning of the rule to be applied.”). but those disagreements have more to do with questions of degree and case-specific applications than they do with conceptual fundamentals. No one can reasonably doubt that circumstances exist when the First Amendment allows postsecondary teachers and administrators to restrict student speech because it would substantially interfere with school activities. A student who is running for a seat on the local city council might like to deliver his stump speech during a well-attended class session, for example, but the First Amendment will permit the professor to shut the student down because his speech would substantially disrupt the professor’s plans for that day’s session. 201 The instructor in that scenario is aided by the fact that her classroom is a nonpublic forum, a government-owned place that has not been opened for public expression and where speech restrictions are permissible so long as they are reasonable and viewpoint neutral. See Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189 (2007) (“[W]hen the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum.”); Axson-Flynn v. Johnson, 356 F.3d 1277, 1285 (10th Cir. 2004) (finding that a college classroom was a nonpublic forum); Linnemeir v. Bd. of Trs. of Purdue Univ., 260 F.3d 757, 760 (7th Cir. 2001) (“Classrooms are not public forums . . . .”). But Tinker nevertheless plays a role. Suppose the course is a small-enrollment seminar and the instructor decides that today’s class session will be held in a local coffee shop, in her living room, or in a nearby national park. The fact that the state does not own the property does not mean the teacher lacks the power to block one of her enrolled students from giving his campaign speech during the class session; Tinker gives her that power regardless of who owns the property on which she is conducting the class.
3. The Principle’s Relevance to College Athletics
When we turn to college athletics, the First Amendment principle we have examined is certainly at play. Individuals who join an athletic team at a public postsecondary school voluntarily choose to participate in a government-run activity, and that activity’s leaders will sometimes find speech restrictions appropriate to help achieve the activity’s goals. So, where does that principle carry us here?
Some applications are obvious. The quarterback who gets pulled from a football game because he overrides the coach’s play-calling decisions will not find refuge in the First Amendment. Neither will the soccer player who is disciplined for interrupting the coach’s pre-game strategy talk with a strategy presentation of her own, the tennis player who is disciplined for texting friends about weekend plans when he is supposed to be participating in a team meeting, or the softball player who is benched for belting out songs in center field during a game rather than concentrating on what is happening in the infield. So far as outcomes are concerned, all of that seems unassailable. Through their various forms of expression, these student-athletes are violating directives given by the individuals whom the government tasks with deciding how best to achieve the goals of the teams that those student-athletes voluntarily joined. Tracking Justice Alito’s logic, 202 See supra notes 194–97 and accompanying text (discussing Justice Alito’s concurring opinion in Mahanoy). we would say that the student-athletes implicitly agreed to have their speech regulated in these kinds of mission-serving ways when they decided to join the team.
The analysis becomes more thought-provoking when we push it toward situations like those described in this Article’s opening paragraph. When Kylee McLaughlin angered some of her teammates and coaches by expressing unpopular views about race, when Ashley Green complained to her school’s athletic director about her coach’s management of the team, when Noriana Radwan raised a middle finger at a television camera while celebrating a tournament win, and when Jonathan Sasser uttered a racial slur while watching a football game, those student-athletes did not disrupt their coaches’ gameplans or practice agendas. They did not, in other words, create scenarios comparable to the government employee who produces job-performing speech that conflicts with her supervisor’s wishes or the college student who wants to commandeer the classroom to make his pitch for a seat on the city council. But does the principle we explored nevertheless place such speech within coaches’ and administrators’ regulatory reach?
If left unchecked by countervailing forces, the principle does point in that direction. Recall that, in the realm of government employment, supervisors may respond adversely to speech that extends beyond that which is job-performing in nature. The First Amendment places no restrictions on public employers’ adverse responses to employee speech on matters of mere private concern, and employees’ freedom to speak on matters of public concern depends on how much goal-thwarting harm one could reasonably expect the speech to inflict in the workplace. 203 See supra Section III.A.1 (discussing First Amendment doctrines that apply in governmental workplaces). The analogy to athletic programs is clear. An athletic program’s success commonly depends on much more than simply ensuring that players obey their coaches’ instructions during practices and games. To varying degrees, it also depends on such things as maintaining respectful relationships between the coaches and their players, fostering a strong sense of commitment to the team and its members, and refraining from stirring up controversies that could distract players and coaches from the single-minded pursuit of victories. Student-athletes’ speech can cause problems in any of those areas. When Kylee McLaughlin expressed her views about race, for example, it led to fractures within the University of Oklahoma’s volleyball program. 204 See supra Section II.A (discussing McLaughlin). Does that mean the district court was mistaken when it ruled that the First Amendment shielded McLaughlin from the discipline her coaches wished to impose?
The possible extension of our first guiding principle does not end there. Suppose we step back and take a broader perspective on what an athletic program’s success requires. In that case, we can say that success depends in part on building a fan base whose loyalty and enthusiasm will yield robust sales of tickets and merchandise, boisterous home crowds, generous charitable donations, and the like. So, can a school discipline its student-athletes for things like raising their middle fingers toward spectators or uttering racial epithets within earshot of others? After all, such speech could lead some fans and donors to believe that a team’s members are unworthy of attention and support. That belief, in turn, might harm things like ticket sales, merchandise purchases, and scholarship contributions.
If we take our principle that far, we will have arrived at the conclusion that virtually any speech by college athletes that could rub someone the wrong way is subject to school discipline. Before rushing to that conclusion, however, there is a second important principle that we need to bring into play.
B. Student-Athletes’ Status as Students
Our reasoning up to this point has not acknowledged any significant difference between adults hired to work as public employees and adults enrolled at public colleges and universities. But there is a crucial difference between the two, and our First Amendment analysis needs to consider it: a deep commitment to the freedom of expression is key to the success of this country’s postsecondary academic communities in ways not integral to the success of most government workplaces. While advancing the goals of a government office may require restrictions on speech, 205 See supra Section III.A.1. advancing the goals of higher education requires a relative absence of restrictions on speech.
The Supreme Court has acknowledged that “[t]he vigilant protection of [expressive] freedoms is nowhere more vital than in the community of American schools.” 206 Shelton v. Tucker, 364 U.S. 479, 487 (1960). As indicated earlier, 207 See supra note 26 and accompanying text. the Supreme Court recognized long ago that its “precedents . . . leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” 208 Healy v. James, 408 U.S. 169, 180 (1972). The Court said that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” 209 Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). And it said that “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” 210 Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)); see also Rust v. Sullivan, 500 U.S. 173, 200 (1991) (stating that “the university is a traditional sphere of free expression . . . fundamental to the functioning of our society”).
Our best university leaders recognize that broad freedom of expression is indispensable to the missions of their institutions. 214 See Donald Alexander Downs, Free Speech and Liberal Education: A Plea for Intellectual Diversity and Tolerance 29–80 (2020) (arguing persuasively for the proposition that robust freedom of expression is central to the mission of American colleges and universities); Keith E. Whittington, Speak Freely: Why Universities Must Defend Free Speech 9–27 (2018) (same). The authors of the University of Chicago’s influential statement on free speech summed up the heart of the case when they wrote that the university must be
committed to free and open inquiry in all matters, [guaranteeing its] community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University [must] fully respect[] and support[] the freedom of all members of the University community “to discuss any problem that presents itself.”
Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community. 215 Geoffrey R. Stone, Marianne Bertrand, Angela Olinto, Mark Siegler, David A. Strauss, Kenneth W. Warren, & Amanda Woodward, University of Chicago Office of the Provost, Report of the Committee on Freedom of Expression (2015) [hereinafter Chicago Statement ], https://perma.cc/58FR-RWND (quoting former University of Chicago President Robert M. Hutchins). The Foundation for Individual Rights and Expression reports that, at the time of this writing, 101 institutions or faculty bodies “have adopted or endorsed the Chicago Statement or a substantially similar statement.” Foundation for Individual Rights in Education, Chicago Statement: University and Faculty Body Support, https://perma.cc/8P4X-QT78.
The University of Chicago is a private institution, of course, and so the authors of that statement did not purport to describe restrictions that the First Amendment places upon them. 216 The Chicago Statement was written by a committee of Chicago faculty members charged by that institution’s president and provost with the task of “articulating the University’s overarching commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.” Chicago Statement , supra note 215. However, Chicago’s leaders’ commitments nicely capture how postsecondary institutions’ objectives and the First Amendment’s requirements converge. In the state where I teach, for example, the Board of Regents promulgated a policy that cites the First Amendment and plainly echoes the Chicago Statement:
[T]o maintain an environment that fosters the free exchange of ideas, the universities must not restrict the expression of viewpoints in violation of the First Amendment to the United States Constitution. It is not the responsibility of the universities to shield individual members of the campus community from viewpoints they may find unwelcome, disagreeable, or offensive. Rather, it is the responsibility of individual members of the campus community to make these determinations for themselves and to respond, not by seeking to suppress speech, but to openly and vigorously debate those viewpoints that they oppose. 217 State of Iowa Board of Regents, Board Policy Manual , Ch. 4.2, https://perma.cc/F6Z5-AHBX.
When student-athletes enroll at a public college or university, therefore, they are joining a community that—by force of law and (if run by wise leaders) by force of institutional commitment—vigilantly protects students’ right to express themselves in ways that others might find unacceptable.
Unduly restricting student-athletes’ expressive freedom thus denies them the experience of being students. If the University of Oklahoma’s volleyball coaches asked Kylee McLaughlin to speak about race in a team meeting and then took adverse action against her because they did not like what she said, for example, or if they punished McLaughlin for expressing unpopular views on social media about a topic of interest to many in the athletic community, 218 See supra Sections I.A, II.A (discussing McLaughlin). those coaches committed precisely the kind of “authoritative selection” that the Supreme Court said the First Amendment forbids on public campuses. 219 See Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)). Ashley Green’s remarks about her coach, Noriana Radwan’s raised middle finger, and Jonathan Sasser’s racial slur might all seem far afield from McLaughlin’s comments about race. 220 See supra Sections I.B, I.C, I.D. But their speech would be protected if they were ordinary college students. 221 See supra Sections II.B, II.C, II.D. Did they lose their constitutional freedom to express themselves in those ways when they voluntarily joined athletic programs whose goals might be advanced by prohibiting such speech?
IV. Harnessing the Two Principles Together
When a student-athlete enrolls at a public college or university, the very term “student-athlete” captures the First Amendment quandary we face. The individual voluntarily joins an athletic program that furthers its goals with speech restrictions but also joins an academic community whose goals will be frustrated if speech restrictions proliferate. We need an analytic framework that addresses that tension.
The best path forward rejects the absolutist proposition that student-athletes implicitly consent to any speech restrictions their coaches opt to impose for the good of the team. Instead, drawing parallels to public employment, courts should allow university officials or coaches to control student-athletes’ speech when either (a) the speech is akin to public employees’ job-performing speech or (b) the institution’s interests outweigh those of the student-athlete under a version of Pickering balancing modified to suit the unique needs of student-athletes and the institutions where they study and compete.
A. Rejecting Consent-Based Absolutism
This Article argued earlier that the First Amendment law of public employment illustrates the principle that the government can impose mission-serving speech restrictions upon those who voluntarily participate in the government’s initiatives. 222 See supra Section III.A.1. Taking that principle to its furthest logical ends, some might argue that the analytic challenges we are considering are easily solved by a simple argument that runs as follows. When student-athletes agree to join their schools’ athletic teams, they implicitly (if not explicitly) consent to have their speech regulated in whatever ways their coaches deem appropriate for the good of the program. 223 See LoMonte, supra note 16, at 42 (observing that “schools may argue that voluntary participation in the activity itself operates as an implicit acceptance of the coach’s and athletic department’s conditions”). Since no one is constitutionally entitled to participate in college athletics, there is no constitutional difficulty in asking students to accept sweeping speech restrictions in exchange for spots on the team. If athletes do not want to play on such terms, they can either pursue athletic opportunities at more accommodating schools or forego participation in college athletics altogether.
When framed in such uncompromising terms, the argument closely tracks the pre-Pickering logic that courts embraced regarding government employers’ ability to restrict their employees’ freedoms in ways the Constitution would not permit absent the employment relationship. In the story of the rise and fall of that approach, we will find materials for constructing a satisfactory framework for evaluating the First Amendment speech rights of college student-athletes.
The model of First Amendment reasoning that courts once deployed for public employees is nicely demonstrated by two rulings: Justice Oliver Wendell Holmes’ 1892 opinion for the Supreme Judicial Court of Massachusetts in McAuliffe v. Mayor of New Bedford 224 29 N.E. 517 (Mass. 1892). and Justice Sherman Minton’s 1952 opinion for the U.S. Supreme Court in Adler v. Board of Education. 225 342 U.S. 485 (1952). In the first of those two cases, John McAuliffe was fired as a town police officer because he helped the political campaigns of individuals running for public office in his off-duty time. 226 See McAuliffe, 29 N.E. at 517. McAuliffe argued that his dismissal violated his free-speech rights, but Justice Holmes disagreed, finding that the town could offer its preferred terms of employment on a take-it-or-leave-it basis:
The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control. 227 Id. at 517–18.
That absolutist approach still held sway when the U.S. Supreme Court decided Adler in 1952. In that case, Irving Adler and others challenged New York regulations that barred members of the Communist Party (or any other group that advocated for the unlawful overthrow of the United States government) from holding jobs in the state’s public schools. 228 See Adler, 342 U.S. at 487–91 (describing New York’s regulatory regime). For Justice Minton and his colleagues in the majority, the First Amendment analysis was easy:
It is clear that [people seeking employment in New York’s public schools] have the right under our law to assemble, speak, think, and believe as they will. It is equally clear that they have no right to work for the State in the school system on their own terms. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. 229 Id. at 492.
Under the McAuliffe–Adler approach, courts required only a rational link between the challenged speech restrictions and the employer’s legitimate concerns. In McAuliffe, the Massachusetts court simply said, without elaboration, that the town’s rule “seems to us reasonable.” 230 McAuliffe, 29 N.E. at 518. In Adler, the Court said that public schools had an interest in training schoolchildren for membership in “ordered society” and that possessing the group affiliations New York had targeted could reasonably be taken as a sign that a person was not fit to provide that training. 231 Adler, 342 U.S. at 493.
In the decade and a half after Adler was decided—and as many public employers continued to rid themselves of employees thought to be sympathetic to Communism—the Court concluded it had gone too far. 232 E.g., Cramp v. Bd. Pub. Instruction Orange Cnty., 368 U.S. 278, 287–88 (1961); Slochower v. Bd. Higher Educ. N.Y.C., 350 U.S. 551, 558–59 (1956); Wieman v. Updegraf, 344 U.S. 183, 190–92 (1952). The problem with the McAuliffe–Adler approach was not that courts kept perceiving employer interests in circumstances where none existed. Nor was the problem typically one of coercion, something that courts and commentators often place in the foreground when evaluating allegations of unconstitutional conditions. 233 See Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989) (“The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.”); id. at 1421–22 (“Unconstitutional conditions problems arise when government offers a benefit on condition that the recipient perform or forego an activity that a preferred constitutional right normally protects from government interference.”); id. at 1419 (observing that the approach that “has overwhelmingly dominated the rhetoric of the cases and preoccupied the commentary . . . locates the harm of rights-pressuring conditions on government benefits in their coercion of the beneficiary”) The quest for a theory of unconstitutional conditions that transcends all situations might be illusory. Cf. Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev . 4, 103 (1988) (observing that, in cases involving allegations of unconstitutional conditions, “[t]he Justices have worked more by hunch and intuition than by systematic theory”). Of course, when it comes to collegiate athletic programs, student-athletes do sometimes feel great pressure to accept whatever terms their schools offer. Cf. Gia B. Lee, First Amendment Enforcement in Government Institutions and Programs, 56 UCLA L. Rev. 1691, 1716 (2009) (“[T]he waiver or forfeiture arguments suggest that those who voluntarily accept (or commit actions that result in) limitations on their First Amendment rights do not highly value their interests in free expression, and hence it is uncontroversial to deny them their rights. Yet individual decisions to join or partake in government institutions and programs reflect myriad considerations, and sometimes it principally reflects individuals’ lack of opportunities or weak bargaining power. For instance, some . . . . students attend public schools because of the lack of viable alternatives.”). Rather, the problem was that, without basic constitutional protections in place, employees were paying an unreasonably high price for their employers’ pursuit of their objectives, and sometimes the larger society was paying an unreasonably high price too. 234 Cf. Garcetti v. Ceballos, 547 U.S. 410, 420 (2006) (“The Court’s decisions, then, have sought . . . to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern . . . .”); Slochower v. Bd. of Higher Educ. of N.Y.C., 350 U.S. 551, 555 (1956) (adjudicating a case involving a municipality’s adverse action against an employee for invoking his privilege against self-incrimination and stating that “[t]he problem of balancing the State’s interest[s] . . . with the traditional safeguards of individual rights is a continuing one”).
In Wieman v. Updegraf, 235 344 U.S. 183 (1952). for example—decided just nine months after Adler—the Court said that conclusively presuming an employee’s disloyalty to the country by mere membership in an organization did not adequately take into account “the consequences visited upon a person excluded from public employment on [those] grounds” and unduly “stifle[d] the flow of democratic expression and controversy.” 236 Id. at 190–91. In Cramp v. Board of Public Instruction, 237 368 U.S. 278 (1961). the Court held that a person’s decision to accept government employment did not give the employer license to fire the employee for refusing to take a vaguely worded anti-Communist oath that could unpredictably expose the employee to perjury charges. 238 See id. at 287–88.
In 1967, in Keyishian v. Board of Regents, 239 385 U.S. 589 (1967). the Court returned to the anti-Communist regulations it upheld in Adler and, this time, evaluated them differently. Under those New York laws, faculty members at the University of Buffalo had either lost their jobs or were poised to lose them for refusing to certify that they had not aided or otherwise affiliated themselves with the Communist Party or any other group that advocated for overthrowing the United States government. 240 See id. at 591–92. The Keyishian Court said that, in the years since the Adler decision, the Justices had repudiated Adler’s “major premise”—the premise that any constitutional difficulty with asking public employees to surrender their constitutional rights in exchange for employment is cured by the fact that workers who find those terms unacceptable can simply “go elsewhere.” 241 Id. at 605 (internal quotation marks omitted) (quoting Adler v. Bd. of Educ. of N.Y.C., 342 U.S. 485, 492 (1952)); see also id. (rejecting the notion that “public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action”). The Court also found parts of the New York law unconstitutionally vague. See id. at 597–604. In the Court’s revised judgment, that premise swung the pendulum too far toward government power. “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable,” Justice William Brennan wrote for the Court, “has been uniformly rejected.” 242 Id. at 605–06 (quoting Keyishian, 345 F.2d at 239). Although the Justices still used the language of reasonableness to describe their central concern, the reasonableness inquiry was now broad enough to take into account not only the employer’s concerns but also (1) the magnitude of any losses that employees would suffer if stripped of the targeted constitutional protections and (2) the degree to which employees plausibly presented the risk of harm that their employers feared. 243 Id. at 605–10. The Keyishian Court determined that no matter what the expressed terms of employment might be, mere affiliation with a group is simply not sufficient proof of disloyalty to warrant losing one’s job. 244 See id. at 607.
One year after Keyishian, focusing specifically on the freedom of speech, the Court handed down its landmark ruling in Pickering and articulated the test that is now familiar to students of the First Amendment. 245 Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563 (1968); see also supra Section III.A.1 (discussing Pickering). Marvin Pickering, a high school teacher, was fired for arguing in a letter to the editor that district leaders were unduly prioritizing athletics over academics. 246 Id. at 565–67. Citing Wieman, Keyishian, and other authorities, the Court emphasized that it had “unequivocally rejected” the Adler-era notion that government employees “may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” 247 Id. at 568. Moreover, as Justice Byron White would later write for the Court in Connick v. Myers, Pickering sought to take better account of the fact that “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” 248 Connick v. Myers, 461 U.S. 137, 145 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)). Speech about things like public schools’ use of funds, the Court found in Pickering, “is vital to informed decision-making by the electorate.” 249 Pickering, 391 U.S. at 571–72.
Because Adler accorded insufficient value to such speech, the Court replaced it with a standard that requires case-by-case balancing. Pickering held that, when a public employer wants to take adverse action against an employee for speaking about a matter of public concern in his or her capacity as a citizen, the First Amendment requires a “balance between” the employee’s interest in speaking about such matters and “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 250 Id. at 568. On the facts before it, the Court concluded that district officials violated Pickering’s First Amendment rights because his interest in producing the speech was substantial and the risk that the speech would disrupt the school’s operations was small. 251 See id. at 574–75.
When we turn to college athletics and contemplate the argument that student-athletes implicitly consent to any speech restrictions their coaches choose to impose for the good of the team, we thus have serious reason to pause. If left unchecked, that argument would carry us to the conclusion that schools can restrict virtually any controversial or unpopular speech that student-athletes produce since such speech might negatively impact the school’s appeal among recruits, fans, donors, and the like. 252 See supra Section III.A.3. The Court’s rejection of McAuliffe–Adler warns against such an absolutist approach. The schools’ concerns are legitimate, but efforts to address them must be tempered by accounting for the costs that implementing the government’s preferences would force others to bear. In particular, we need to account for the speech interests bound up with the “student” half of the “student-athlete” formulation. 253 See supra Section III.B. When we set out to account for these competing interests, the First Amendment law of public employment points the way.
B. Modifying Pickering for Postsecondary Schools and Their Student-Athletes
1. The Aptness of the Comparison
The challenges we face in college athletics are similar to those that impelled the Court to devise the Pickering standard. In both settings, we find the government launching projects and seeking citizen participants to help pursue those projects’ goals; we find people voluntarily taking the government up on its offer; we find the government determining that the goals of its projects could be advanced to greater or lesser degrees by limiting the speech freedoms of the projects’ participants; and we find the risk that the government will restrict participants’ speech freedoms in ways that excessively burden the participants and perhaps also the larger society.
The aptness of the comparison is further strengthened by concerns about academia that helped fuel the Court’s shift from McAuliffe–Adler to Pickering. When rejecting New York’s effort to fire teachers simply because of their group affiliations in Keyishian, 254 See supra notes 239–44 and accompanying text (discussing Keyishian). for example, the Court said that “the stifling effect on the academic mind from curtailing freedom of association in such manner is manifest.” 255 Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 607 (1967). Or consider Shelton v. Tucker, 256 364 U.S. 479 (1960). in which the Court invalidated an Arkansas law that allowed teachers in the state’s colleges and K-12 schools to keep their jobs only if they annually provided a list of all organizations to which they had belonged over the prior five years. 257 See id. at 480–81, 490. Through quotations pulled from an earlier Justice Felix Frankfurter concurrence and from one of its previous rulings, the Shelton Court underscored the need to ensure that those in academic communities retain significant expressive and associational freedom:
“By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.” . . . “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate . . . .” 258 Id. at 487 (first quoting Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring); and then quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)); see also id. at 490 (stating that Arkansas’ requirement went “far beyond what might be justified in the exercise of the State’s legitimate inquiry into the fitness and competency of its teachers”).
To address the tension between student-athletes’ interest in retaining their expressive freedom and postsecondary institutions’ interest in running effective athletic programs, we thus can look to Pickering for guidance. 259 Balancing tests are admittedly dissatisfying to the degree they can make outcomes difficult to predict. Cf. Rachel E. Barkow, In Memoriam: Justice Antonin Scalia, 130 Harv. L. Rev. 9, 11 (2016) (“One of the reasons Justice Scalia disliked balancing tests so much was precisely because it is almost impossible to predict how a case should come out using one. Who is to say who is right and wrong when the ‘test’ is to take everything into account and come out with an answer?”). Pickering-style balancing is no exception. Cf. Connick v. Myers, 461 U.S. 138, 150 (1983) (“Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests.”). But when the competing interests are weighty and categorical rules would wholly disregard one set of those interests for the good of the others, such tests are the best the law can do. Again, Pickering requires courts—operating on a case-by-case basis—to “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 260 Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968); see also supra Section III.A.1 (discussing Pickering). Because the specifics of Pickering balancing are so familiar, we can use them as our starting point and build out our model from there.
2. The Student-Athlete’s Side of the Balance
When repurposing Pickering for deployment in college athletics, how might we think about the student-athlete’s side of the balance? At a minimum, student-athletes share the same interest that public employees have in speaking about “matter[s] of political, social, or other concern to the community.” 261 Connick, 461 U.S. at 146; see also supra Section III.A.1 (discussing Pickering and matters of public concern). The freedom to talk about matters of public concern is a First Amendment interest that citizens carry with them throughout their lives, no matter what realms of work, study, or recreation they enter. They certainly carry that interest with them when they enroll at public colleges and universities, where faculty and students have a powerful, institutionally grounded interest in being able “to discuss any problem that presents itself.” 262 Chicago Statement, supra note 215.
To render the Pickering formulation suitable for student-athletes, however, we need to make one significant modification and draw one important analogy. The modification concerns a crucial difference between employees’ and college students’ interests. Public employees are entitled to Pickering balancing only for speech on matters of public concern. As I noted earlier, 263 See supra Section III.A.1 (discussing speech on matters of private concern). the First Amendment does not limit public employers’ ability to respond adversely to employees’ speech on private matters. That approach is patently inappropriate when assessing the speech rights of postsecondary students. 264 Pettys, supra note 40, at 268 (making this argument in a different setting).
The life of a college student should be rich with interaction. Many students are in their late teens and early twenties, taking their first large, independent steps into the world of adult ideas, relationships, and life-shaping possibilities. If we told those students that the First Amendment does not limit their school’s disciplinary reach when they speak about matters of private interest, we would chill vast swaths of speech tightly bound up with the college experience. When a student talks with a professor about her rejection of the partisan politics of her parents and the sense of personal crisis her rejection engendered, for example, should she regard that as speech about a public matter (partisan politics) or a private matter (personal crisis)? When a student talks with a friend about the reasons for his racial dating preferences, should he understand himself to be talking about a public matter (the role of race in romantic relationships) or a private matter (his dating preferences)? When a student tells others about illegally crossing the nation’s border with her family as a child, should she think she is speaking about a public matter (immigration policy) or a private matter (her family history)? Courts can devise answers to such questions after the fact, but it would be foolish to expect college students to sort out all those distinctions for themselves, much less do so during the very conversations that call for those distinctions. If we declare that the First Amendment does not protect student speech falling on the “private” side of the line, we will push risk-averse students toward the very kind of “caution and timidity” that the Court recognizes as incompatible with membership in a college community. 265 See Shelton v. Tucker, 364 U.S. 479, 487 (1960) (Douglas, J., concurring) (quoting Wieman v. Updegraf, 344 U.S. 183, 195 (1952)). A federal district court has made the point well: “It would be incredulous to think that [a] university has carte blanche to retaliate against any student as long as the speech was of a private concern or was made to vindicate the student’s private interest.” 266 Qvyjt v. Lin, 932 F. Supp. 1100, 1109 (N.D. Ill. 1996). That same court subsequently found that it had long been “clearly established . . . that state university officials cannot retaliate [against] or punish a graduate student for the content of his speech, regardless of whether that speech touches matters of public or private concern.” Qvyjt v. Lin, 953 F. Supp. 244, 249 (N.D. Ill. 1997). Other courts have reached similar conclusions. See, e.g., Zwick v. Regents of the Univ. of Mich., No. 06-12639, 2008 WL 1902031, at *26 (E.D. Mich. 2008). The same principle holds true for students enrolled at public K-12 schools. See Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766 (9th Cir. 2006) (“Although Connick’s personal matter/public concern distinction is the appropriate mechanism for determining the parameters of a public employer’s need to regulate the workplace, neither we, the Supreme Court nor any other federal court of appeals has held such a distinction applicable in student speech cases, and we decline to do so here.”); see generally Connick v. Myers, 461 U.S. 138, 147 (1983) (“We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.”). When identifying the interests that exert weight on the student-athlete’s side of the balance, therefore, the speaker’s interests in speaking on matters of private concern should not be excluded.
The distinction between matters of public and private concern is nevertheless not irrelevant. Because “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’” 267 Connick, 461 U.S. at 145 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)). a student-athlete’s First Amendment interests in speaking about matters of public concern will usually be constitutionally weightier than her First Amendment interests in speaking about matters that are wholly private in nature. Both sets of expression enjoy First Amendment protection, but they do not carry the same constitutional gravity. All else being equal, the school’s interests are thus more likely to outweigh those of the student-athlete when the speech in question does not address a matter of public concern. Admittedly, the line-drawing difficulties illustrated in the prior paragraph can make it hard for speakers to predict how courts will strike the balance in particular cases. But student-athletes can at least be assured that their First Amendment rights are in play regardless of the public or private nature of their speech’s subject matter.
The important analogy that we need to draw when repurposing Pickering for deployment in college athletics concerns the Court’s finding that the First Amendment only protects an employee when he or she speaks “as a citizen,” rather than as an “employee[].” 268 Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968). As I noted earlier, the Court subsequently foregrounded that distinction in Garcetti v. Ceballos, holding that public employees receive no First Amendment protection when speaking pursuant to their job duties. 269 See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); see also supra Section III.A.1 (discussing Garcetti). Analogizing employees’ job duties to student-athletes’ duties as members of their respective teams, the same principle should hold in college athletics. In both domains, citizens agreed to help the government achieve its goals in a particular area, and the government needs to regulate those participants’ speech when they execute the functions they were recruited to perform. If a public employer does not like how its receptionist answers the telephone, the employer can demand that the receptionist answer it differently. By the same token, if a tennis coach does not like how her players communicate during their doubles matches, she can demand that they communicate differently. Earlier, I described a quarterback who repeatedly calls plays other than those chosen by his coach. 270 See supra Section III.A.3. It is unthinkable that, by invoking the First Amendment’s Speech Clause, our rebellious quarterback could enlist the nation’s courts in his quest for play-calling supremacy. 271 Cf. supra Section III.A.2 (discussing courts’ deference to teachers’ pedagogical speech regulations). When it comes to speech that coaches expect their student-athletes to produce to excel in their respective sports, the school is entitled to insist upon getting the speech that it wants, and no case-by-case balancing of interests is appropriate.
Sometimes, a student-athlete’s team-related speaking duties might extend beyond games and practices, and, when they do, the coach’s speech-regulating power should usually follow. But here we encounter a troubling possibility comparable to one that the Garcetti Court acknowledged. Dissenting in Garcetti, Justice David Souter said that he was “pessimistic enough to expect that one response to the Court’s holding will be moves by government employers to expand stated job descriptions to include more official duties and so exclude even some currently protectable speech from First Amendment purview.” 272 Garcetti, 547 U.S. at 431 n.2. Similarly, a school might define the speech-related duties of its student-athletes so broadly that a vast amount of speech is brought within the school’s control. A school might tell its student-athletes, for example, that one of their duties is to always speak in a manner that brings honor to the team. What then?
The Garcetti majority did not sort out all the details of its response to that concern; because no one, in that case, doubted that the employee had spoken pursuant to his job duties, the Court said it had “no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” 273 Id. at 424. But the Court made clear that employers were not free to maximize their speech-regulating power by
creating excessively broad job descriptions. The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes. 274 Id. at 424–25.
Similarly, schools should not be permitted to leverage their duty-defining power into an opportunity to place student-athletes under near-constant supervision. I do not try here to define the precise breadth and limits of all speech-entailing duties that student-athletes may be assigned. But limits are plainly appropriate if student-athletes are not to be unduly stripped of their expressive freedom. Indeed, the Court has already voiced comparable concerns regarding high school students. In Mahanoy Area School District v. B.L., the Court held that the First Amendment did not permit a public high school to punish one of its disappointed cheerleading aspirants for posting—after school hours and off school grounds—a profane photo and message about the cheerleading program on her social media account. 275 Mahoney Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2042–43 (2021); see supra notes 104–05 and accompanying text (discussing Mahanoy). One of the many reasons the Court gave for its conclusion was that a verdict for the school would place a large amount of student speech under the school’s ceaseless supervision:
[F]rom the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. 276 Mahanoy, 141 S. Ct. at 2046.
If the Court has this concern for high-school students—students whose speech is more constitutionally susceptible to regulation than the speech of their college counterparts 277 See supra notes 148–50 and accompanying text. —then it will have at least as much concern for the expressive freedom of college students.
As courts sort out what can and cannot be regarded as a student-athlete’s speech responsibilities for First Amendment purposes, two guidelines suggest themselves at the outset. First, because consent plays a role in rendering speech restrictions constitutionally permissible in settings such as this, 278 See supra notes 194–97 and accompanying text. speech should not be regarded as a team duty for First Amendment purposes unless the student-athlete should reasonably have anticipated that such speech would be something that coaches could control to the same degree they could control game-performance speech. The world of public employment again provides a useful analogy. When public employees are hired and trained, they learn their job descriptions, and correspondingly, they learn the range of circumstances in which their supervisors can control their speech because it is job-performing in nature. If a supervisor asks an employee to speak in an altogether different situation, one that the employee could not reasonably have expected to fall within her job duties—if a supervisor asks the office’s human resources director to telephone a birthday venue for the supervisor’s child, for example—then Garcetti’s logic seems plainly inapplicable. The same principle should hold true for college student-athletes.
Second, when it comes to giving coaches the control that Garcetti-style reasoning affords, there is an important difference between (1) coaches controlling the speech that their student-athletes produce to effectively execute the physical feats that their sports require and (2) coaches telling their players that, whenever they speak in the larger world, they must do so in ways that bring credit to their teams. In the latter case, we cannot say that coaches’ concerns are irrational; again, a student-athlete’s provocative speech on any occasion carries the risk of alienating at least a few teammates, fans, donors, or recruits. 279 See supra Section III.A.3. Such risks deserve consideration in the Pickering-style balance we are fashioning. But to allow schools to reach that far into their student-athletes’ lives with the total, uncompromising power that Garcetti-like reasoning affords would impose excessive costs on students—costs that are incompatible with their status as students and that resemble the costs the Court found unacceptable when it replaced McAuliffe–Adler’s absolutism with Pickering’s balancing.
3. The School’s Side of the Balance
What about colleges’ and universities’ side of the balance? The chief interests here fall into two main categories. First, of course, is schools’ interest in winning athletic competitions. Schools hire coaches and recruit athletes to compete effectively against other schools. Winning isn’t everything, 280 Cf. Beau Dure, Winning Isn’t Everything; It’s the Only Thing. Right?, Guardian (Sept. 24, 2015, 5:00 AM), https://perma.cc/N2QV-C2J4 (“‘Winning isn’t everything; it’s the only thing,’ Vince Lombardi said. Well, sort of. The legendary football coach isn’t the first person to say that, and he later insisted that he was talking about ‘the will to win’ or ‘making an effort.’”). but it certainly is a primary objective. Schools thus have a legitimate interest in regulating speech that threatens to undercut their athletic success. The greater the threat to high-level athletic performance, the weightier the school’s interest. If speech deepens divisions between teammates in ways they cannot reasonably expect to overcome, for example, and if those teammates are then hindered in their ability to cooperate in ways their sport requires, then schools have an interest in regulating it. In this way, a school’s interests compare to those of a government employer that has an interest in regulating non-job-performing speech when it threatens to make the workplace dysfunctional. 281 See supra Section III.A.1. Of course, because college student-athletes are adults, they—like public employees—can reasonably be expected to go a long way toward finding ways to work together despite their significant differences. Indeed, learning those life skills is one of the important things that participation in athletics can teach. But to the degree that speech can reasonably be expected to make it harder for a team to perform at its best on gameday notwithstanding those truths, the school’s interest in regulating that speech is an interest that belongs in the balance.
What about speech that might bring dishonor to the team and thus alienate at least a few fans, recruits, or donors, whether the speech takes the form of a racial epithet, a profane shouting match with a friend downtown, a bigoted political pronouncement, or something else? Schools have an interest at stake when student-athletes express themselves in potentially alienating ways because alienated audiences may be less likely to buy tickets and team merchandise, make charitable contributions, or support the team in other ways. The question is what to do about it. One approach says that schools’ interest in regulating such speech should always be included in the balance. But if that were our answer, students’ speech would be chilled by the prospect of near-omnipresent governmental supervision. 282 See supra notes 276–78 and accompanying text.
To account for that problem while still giving school officials meaningful room to protect their legitimate interests, courts should say that if a student-athlete’s speech cannot reasonably be expected to make it harder for a team to perform at its best on gameday, the First Amendment permits a school to regulate it only if it violates expressed standards of sportsmanship. Besides athletic skills, sportsmanship is the primary ideal that honorable athletic programs purport to teach their participants. Indeed, in its constitution, the National Collegiate Athletic Association requires its member schools’ staff and athletes to conduct themselves in sportsman-like ways:
Integrity and Sportsmanship. It is the responsibility of each member [institution] to conduct its athletics programs in a manner that promotes the ideals of higher education, human development and the integrity of intercollegiate athletics. All individuals associated with intercollegiate athletic programs and events should adhere to such fundamental values as respect, fairness, civility, honesty, responsibility, academic integrity, ethical conduct, and the rules of their respective conferences. 283 NCAA Const. art. 1.C., https://perma.cc/6LYT-B6HD; see also Corbin McGuire, NCAA Members Approve New Constitution, NCAA (Jan. 20, 2022, 6:12 PM), https://perma.cc/ZCP5-6RUY.
For the same reasons that limits must be placed on schools’ ability to define the speech-related duties of their student-athletes for First Amendment purposes, 284 See supra notes 272–74 and accompanying text. schools should not be permitted to invoke sportsmanship values like “respect, fairness, civility, [and] honesty” to evaluate and respond to everything a student-athlete says. A student-athlete’s speech falls within a school’s reach on sportsmanship grounds only if a nexus exists between the speech and the athletic activities the speaker was recruited to perform. That nexus requirement is satisfied only if both (1) the speech concerned an institution or person in their capacity as an opponent, teammate, coach, fan, fellow student-athlete, or official, and—because consent is relevant to the First Amendment analysis 285 See supra notes 194–97 and accompanying text. —(2) the speaker reasonably should have anticipated when joining the team that their coaches or other school officials would be permitted to respond adversely to their speech under such circumstances.
Courts here can profitably draw comparisons to another area of First Amendment law currently in the early stages of construction—namely, the law governing the ability of public universities’ professional schools to regulate the curricular and non-curricular speech of their students on professionalism grounds. I have written on this subject elsewhere 286 See generally Pettys, supra note 40. and so will not elaborate on it in detail here. Suffice it to say that courts in recent years have found (1) that law schools, medical schools, and other educational institutions that train students for professions governed by written ethical codes have a pedagogical interest in preparing students to speak in ways ethically appropriate for members of those professions, and (2) that those schools thus can respond adversely to unprofessional student speech even when produced far from the classroom. 287 See, e.g., Keefe v. Adams, 840 F.3d 523, 525–33 (8th Cir. 2016) (upholding the expulsion of a nursing student for unprofessional statements he made in Facebook posts); Keeton v. Anderson-Wiley, 664 F.3d 865, 868–80 (11th Cir. 2011) (upholding the expulsion of a counseling student for unprofessional statements she made to classmates and instructors); Tatro v. Univ. of Minn., 816 N.W.2d 509, 513–23 (Minn. 2012) (upholding the expulsion of a mortuary-science student for unprofessional statements she made in Facebook posts). The analogy is admittedly not perfect. Although some college student-athletes go on to professional careers in their respective sports, more than ninety-eight percent do not. 288 See NCAA Recruiting Facts, NCAA, https://perma.cc/47F6-AHT8. Training students for professional athletic careers is not the principal aim of postsecondary schools’ athletic programs, and professional athletes typically are not governed by ethical codes of the sort one finds in law, medicine, and a handful of other fields. But sportsmanship on and off the field is an ideal that schools routinely purport to teach and demand of their student-athletes. When speech is inconsistent with a school’s appropriately tailored standards of sportsmanship, the school thus has a legitimate interest in regulating it.
V. Putting It All Together
One does not need to spend much time with cases featuring free-speech claims brought by college student-athletes to learn that the First Amendment rules for resolving those claims are remarkably murky. In recent years, defendants have sometimes won on the defense of qualified immunity because no clearly established law exists for circumstances like those presented. 289 See supra Sections II.C, II.D. And when courts reach the merits of student-athletes’ claims, they sometimes issue rulings that raise as many questions as they answer. 290 See supra Sections II.A, II.BII.B.
This Article has proposed an analytic framework for resolving these disputes. The framework seeks to reconcile two competing principles. First, when the government launches a goal-seeking endeavor and assembles people who chose to participate in it, the First Amendment gives the project’s leaders broad latitude to regulate the participants’ speech in ways reasonably calculated to achieve the project’s objectives. 291 See supra Section III.A. Second, the First Amendment honors the proposition that the nation’s public colleges and universities can achieve their missions only if they afford all of their students broad expressive freedom. 292 See supra Section III.B. To harness those two fundamental principles in service to a satisfactory system for resolving student-athletes’ free-speech claims, this article has argued that courts should repurpose—making alterations where appropriate—the framework that the Court built for evaluating First Amendment free-speech claims brought by public employees against their employers.
To recap how the constitutional analysis should proceed, let us return to the four examples introduced in this Article’s opening paragraph and which Part II more fully described. Recall that Kylee McLaughlin was the University of Oklahoma volleyball player who angered some of her teammates with her statements about race, both online and in a mandatory team meeting. 293 See supra Section II.A. Ashley Green was the Eastern Kentucky University soccer player who complained to school officials about her coach’s methods. 294 See supra Section II.B. Noriana Radwan was the University of Connecticut soccer player who raised a middle finger at a television camera while celebrating a win. 295 See supra Section II.C. Jonathan Sasser was the University of Georgia baseball player who used a racial slur to refer to a black football player while watching a Georgia football game. 296 See supra Section II.D.
The first step is to ask whether the student-athletes spoke pursuant to their duties as members of their respective teams. If they were, then the First Amendment does not shield them from their coaches’ adverse responses, just as, under Garcetti, the First Amendment gives government employees no protection for speech they produce to carry out their job responsibilities. 297 See supra Section III.A.1. Green, Radwan, and Sasser plainly did not express themselves pursuant to their team-member duties: they were not expected to talk to the coaches’ supervisors about the coaches’ methods, address the television cameras while celebrating a win, or offer commentary while watching other student-athletes play their sports.
The conclusion in McLaughlin’s case is the same, though it takes a moment longer to get there. When McLaughlin posted the controversy-sparking emojis on an ESPN website, 298 See McLaughlin v. Bd. of Regents of Univ. of Okla., 566 F. Supp. 3d 1204, 1210 (W.D. Okla. 2021); see also supra note 103 and accompanying text. she certainly did not execute a team-member duty. The team meeting in which she offended some of her teammates, however, was a mandatory gathering called by her coaches to discuss a documentary film about racial justice, and her coaches reportedly asked McLaughlin to articulate her reactions to it. 299 See McLaughlin, 566 F. Supp. 3d at 1210; see also supra note 103 and accompanying text. Although McLaughlin’s coaches wanted her to attend the meeting and speak about the film, the case nicely illustrates a situation in which speaking duties were assigned beyond the realm in which Garcetti-like reasoning strips student-athletes of First Amendment protection. 300 See supra notes 272–81 and accompanying text. McLaughlin’s remarks at the meeting had nothing to do with the athletic feats that Oklahoma recruited McLaughlin to perform. Nor was it speech of a sort that McLaughlin reasonably should have anticipated being required to produce as a member of the volleyball team, nor could she reasonably have anticipated that, by joining the team, she would give her coaches full disciplinary control over speech of that sort. 301 See supra notes 190–93, 278–79 and accompanying text. So far as the First Amendment is concerned, therefore, McLaughlin did not carry out duties as a member of the team when she shared her thoughts about the film.
The next step in each of the four cases is to balance the student-athletes’ interests in expressing themselves in those ways against the schools’ interests in regulating the speech. Start with Kylee McLaughlin. Her interests were weighty. Issues of race featured prominently in conversations across the country in the wake of George Floyd’s killing, 302 See supra note 1. and McLaughlin had a strong interest in adding her viewpoints to the mix. The topics that McLaughlin addressed are matters of public concern, squarely situated “within the heartland of speech protected by the First Amendment.” 303 In re Tam, 808 F.3d 1321, 1331 (Fed. Cir. 2015), aff’d sub nom. Matal v. Tam, 582 U.S. 218 (2017) (quoted supra note 31). Moreover, McLaughlin had formulated articulable views about those issues, which evidently challenged the prevailing orthodoxy among her peers. The freedom to challenge widely embraced views and to make one’s own contributions to the marketplace of ideas is fundamental to membership in a postsecondary academic community. 304 See supra Section III.B.
On the other side of the balance, the case’s reported facts contain nothing to suggest that concerns about sportsmanship were at stake. Still, Oklahoma officials did have an interest in regulating McLaughlin’s speech to the extent it threatened to undermine the team’s ability to compete together on the volleyball court. Several factors, however, push against giving the latter interest much weight. As adults and college students, McLaughlin and her teammates should be expected to go a long way toward bridging their ordinary social and political differences. Moreover, so far as the remarks at the team meeting were concerned, the volleyball coaches were the ones who decided to raise these sensitive issues for discussion. Implicitly bound up in that decision is the apparent judgment that if the team’s discussion produced disagreement, it would not unacceptably threaten the team’s ability to compete at the level of proficiency the coaches hoped to achieve. For all these reasons, McLaughlin was the litigation’s rightful winner.
What about our other three speakers? We can begin by thinking about the topics they were addressing when they produced the expression that got them into trouble. Recall that, for college student-athletes, the distinction between matters of public and private concern is about determining the weight of the speaker’s interests rather than determining whether the First Amendment provides any protection at all. 305 See supra notes 267–69 and accompanying text. Even though the inquiry does not perform the same gateway function that it performs when evaluating First Amendment claims brought by government employees, it is worth asking whether those speakers were addressing matters of public concern when they spoke.
In Green’s case, the court’s opinion does not tell us much about the substance of Green’s remarks to the school’s athletic director, so it is difficult to say for sure whether she was addressing a matter of public concern. It is possible that she was. Speech is about a matter of public concern when it addresses “a subject of legitimate news interest,” 306 City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (quoted supra note 36). and one can imagine local news stories about the effectiveness or ineffectiveness of Eastern Kentucky’s soccer coach. But even if Green’s complaints did amount to speech on a matter of public concern, her interest in producing the speech was still of less constitutional gravity than her interest in speaking about something in which the public’s interest extended more broadly than the family of Eastern Kentucky soccer fans. In addition, Green had a separate, plainly private interest that deserves at least some weight on the scale—namely, she hoped to provoke coaching changes so that she could play for someone whose coaching style better matched her preferences.
As for Eastern Kentucky’s interests in regulating Green’s speech, the court’s opinion does not contain anything suggesting that principles of sportsmanship came into play. Assuming that is true, the strength of the school’s case depended entirely on the degree to which Green’s speech threatened to undermine the team’s ability to perform at peak capacity on game days. Because we do not know much about what Green said or the attitude with which she said it, it is difficult to judge whether her speech posed a meaningful threat to the team’s competitive capacities. But the mere fact that Green went to the athletic director with concerns about the coach’s methods should not itself be sufficient to present a threat to athletic performance. Such a threat presumably would arise only if Green infected her teammates with dissatisfaction, resisted her coach’s instructions, or participated less than wholeheartedly in games and practices. If those things were not happening, Green should have prevailed on the merits.
Radwan’s expressive interests were less weighty than Green’s and significantly less weighty than McLaughlin’s. When she waved her middle finger at a television camera during a postgame celebration, she evidently tried to say something about Connecticut’s win, a subject of news interest. But the content of Radwan’s communication was far from clear; indeed, she might simply have attempted to say something about her sense of delight or vindication, a matter of mere private concern. Radwan’s interest in expressively celebrating her team’s win deserves at least a little weight on the scale. But without greater clarity about what she was trying to say, one cannot conclude that her expressive interests were particularly great.
On Connecticut’s side of the scale, there does not appear to be any reason for the school to fear that Radwan’s gesture would make it harder for the team to compete effectively in its next matches. But the school did presumably have legitimate concerns about sportsmanship. Because Radwan made the gesture on the field of competition in response to a tournament win and directed the gesture at the soccer fans watching the game on television, the required nexus likely exists between her speech and the athletic activities she was recruited to perform. 307 See supra note 285 and accompanying text (discussing the nexus requirement). When Radwan joined the team, should she have anticipated that her coaches could respond adversely to such speech under such circumstances? 308 See supra note 278 and accompanying text (discussing this requirement). If so, a court could reasonably find that the school’s interest in enforcing its standards of sportsmanship sufficed to outweigh Radwan’s minimal interest in expressing herself in that way.
Similarly, Sasser’s interests also receive minimal weight, such that the University of Georgia’s interests in team cooperation and sportsmanship outweigh them. Speaking about then-backup quarterback Justin Fields (a black man), Sasser reportedly “yelled ‘put the n——— in’” after Georgia’s starting quarterback made a mistake. 309 Raggs, supra note 4. Fields’ racial identity was not a matter of public concern. Neither were Sasser’s personal views about black people’s social status. But, at least among football fans, the public did have an interest in who Georgia’s quarterback should be, and that was a subject that Sasser addressed, albeit in one of the most offensive ways imaginable. Sasser had at least a modicum of interest in joining those wishing to express their views on the subject.
The University of Georgia, however, had weighty interests in regulating the inflammatory speech. School officials could have feared that Sasser’s use of such hateful and derogatory language to refer to a fellow athlete would make it difficult for some of Sasser’s baseball teammates to cooperate with him in ways the sport requires or would distract the team from focusing its energies on winning. In addition, the school might have had an interest in regulating the speech on sportsmanship grounds. Sasser’s comment concerned a person in his capacity as a fellow student-athlete, which satisfies that portion of the nexus requirement. 310 See supra note 285 and accompanying text (discussing the nexus requirement). So long as Georgia gave Sasser reason to anticipate that the school could regulate speech under such circumstances, the school’s concerns about sportsmanship would add even greater weight to Georgia’s side of the scale. All told, a court could reasonably find that the school’s interests outweighed Sasser’s and that his First Amendment claim should thus fail on the merits.
Conclusion
College student-athletes’ free-speech claims are unique in the First Amendment landscape because they require us to reconcile two principles that stand in significant tension with one another: (1) as college students, student-athletes are entitled to broad freedom of expression as members of postsecondary academic communities; and (2) when the government launches a mission-driven project and individuals agree to join it, the project’s leaders should have wide latitude to regulate the participants’ speech in ways reasonably calculated to ensure the project’s success. The tension between those principles cannot be satisfactorily resolved with the absolutist premise that, when joining their respective teams, student-athletes implicitly waive all First Amendment objections to speech restrictions that their coaches impose for the good of the team. That path is too costly. The best way forward is to draw lessons from the world of public employment. Public colleges and universities should not face any First Amendment restrictions when regulating the speech that student-athletes are required to produce as members of their respective teams. For all other student-athlete speech, schools should be permitted to impose restrictions only when the student-athletes’ interests in producing the expression are outweighed by the school’s interests in having its athletic teams perform at peak capacity on gamedays and ensuring compliance with established standards of sportsmanship.