Analysis: A limited First Amendment ruling
on Jun 21, 2007 at 1:26 pm
Analysis
The main opinion in the Supreme Court’s ruling on Thursday, allowing state prep sports associations to curb recruiting of young athletes for high school teams, turns out not to be controlling on a key First Amendment issue. The opinion in Tennessee Secondary School Athletic Association v. Brentwood Academy (06-427), written by Justice John Paul Stevens, speaks for a majority on only one point: that is, such an association may curb expressive activity by a high school if that school has voluntarily joined the group and agreed to obey its rules. On that point, the vote was 8-1 (the one vote in dissent being cast by Justice Clarence Thomas, who thought there was no First Amendment issue of any kind at stake).
But on a second point in the Stevens opinion, the vote of the Court is 5-4 against that position. The issue is whether, if a speaker has not voluntarily given up free speech rights, a state nevertheless can curb the use of those rights in direct, person-to-person verbal or written contact.
On this second point, Stevens’ opinion borrowed from a 1978 ruling in the case of Ohralik v. Ohio State Bar Association, involving “ambulance chasing” by lawyers by in-person solicitation of clients. In that ruling, the Court allowed a state to ban such approaches, finding that direct personal contact can exert pressure and demands for an immediate response, thus resulting in less, not more, genuine communication and exchange of ideas.
Stevens would apply that approach to the no-recruiting rule at issue. (The rule was applied by the Tennessee group to sanction a private school that had built a reputation as a prep school powerhouse, and sought to maintain that reputation by directly approaching eighth graders to get them to enroll.) “The dangers of undue influence and overreaching that exist when a lawyer chases an ambulance,” Stevens wrote, “are also present when a high school coach contacts and eighth grader…In too many instances, the invitation will come accompanied with a suggestion, subtle or otherwise, that failure to accept will hurt the student’s chances to play high school sports and diminish the odds that she could continue on to college or (dream of dreams) professional sports….Such a potent entreaty, playing as it does on youthful hopes and fears, could well exert the kind of undue pressure” cited in the “ambulance chasing” decision.
That is clearly a part of the main opinion. But it, in fact, only has the support of Justice Stevens and Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. One finds the rejection of that view in two separate opinions.
Justice Anthony M. Kennedy, in a concurring opinion joined by three other members of the Court, rejects the application of the lawyer solicitation case outside the context of lawyer speech. “The Court has declined to extend the Ohralik rule beyond the attorney-client relationship,” Kennedy wrote. “In my view, it is both unnecessary and ill advised to rely upon Ohralik in the Instant matter. By doing so, the principal opinion, at a minimum, is open to the implication that the speech at issue is subject to state regulation whether or not the school has entered a voluntary contract with a state-sponsored association in order to promote a code of conduct affecting solicitation. To allow free-standing state regulation of speech by coaches and other representatives of nonmember schools would be a dramatic expansion of Ohralik to a whole new field of endeavor.”
Kennedy pointedly noted that his view on this point had the support of a majority of the Court. His opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia. Kennedy cited language in Justice Thomas’ separate opinion joining in the result only, saying the Stevens opinion was wrong in extending the Ohralik approach.
The net effect of this division is that the scope of the First Amendment holding in the case is narrow, confined, indeed, to voluntary forfeiture of free-speech rights by private actors.
