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Thursday, April 19, 2007
Oral Agruments in TSSAA v. Brentwood Academy (Updated)

For those interested, this morning's oral argument in TSSAA v. Brentwood Academy is available here (HT: SCOTUSBlog).

I will provide some comments and thoughts once I have a chance to read it, probably tomorrow.


Having read the oral argument transcript, it appears one of my earlier predictions proved false: No sports puns or analogies from anyone. I stand by my other prediction, however: the Supreme Court will reverse the Sixth Circuit.

Some random thoughts:

* The TSSAA focused the First Amendment argument on its interests in preventing the exploitation of young student-athletes and on ensuring that athletics do not take precedence over academics. The lawyer never mentioned the interest in maintaining a level playng field, although the Chief tried to bring her in that direction at one point, by suggesting that public schools cannot recruit while private schools can.

* Several justices, including the Chief and Justice Kennedy, seemed inclined to accept that the recruiting rule should be subject to the First Amendment analysis reserved for government-employee and government-contractor cases, a less-burdensome analysis for the government to clear. There also was a lot of discussion of the voluntary nature of TSSAA membership and the fact that there are other, smaller athletic associations in the state.

* Several Justices seemed concerned with the possible breadth of the recruiting ban. They pushed both the TSSAA and the attorney for the United States about whether the rule would apply to all contacts between a school and prospective student--such as a brochure that mentioned Brentwood's stellar football program. Both the TSSAA and the United States pulled back from suggesting that the rule could apply that broadly. This allowed them to argue that Brentwood had other ways to get its message out, an important First Amendment consideration. There also was an interesting exchange between the lawyer for the TSSAA and the Chief about whether a coach could be penalized for criticizing game officials; the lawyer suggested that might not be within the Association's power.

* Brentwood's lawyer got hit hard about the fact that the speech at issue was more than general expression to the public at large about the school and the football program. This was recruiting; it was targeted at student-athletes and signed "Your Coach."

* Justice Breyer was extremely skeptical of Brentwood's procedural due process claim, in part because Brentwood was not clear about the precise nature of the claim. To the extent the problem was that a TSSAA investigator had ex parte contact with the Board, Breyer pointed out this happens every day in federal administrative agencies and that Brentwood's argument would invalidate the Administrative Procedures Act (Breyer is a former Ad Law scholar). To the extent the problem was lack of an opportunity to present certain evidence, it is not clear that opportunity mattered.

So, I still go with a reversal of the Sixth Circuit, probably unanimous. The rub in the case(and perhaps the source of divisions in the Court) may be what type of First Amendment analysis the Court adopts--whether it treats this as the equivalent of a government-employee speech case, which could have far-reaching effects.


This just isn't speech that the First Amendment is designed to protect. Where is the "expression" of ideas, personal inner thoughts, feelings (i.e. literary works, paintings, burning the flag, etc.) that is worthy of any protection?

Let's say I send a letter to all of the students enrolled in my sports law class next fall inviting them all to meet with me a week or two before classes commence next fall semester. If my school has a rule prohibiting professors from pressuring the students to meet before classes commence, do I have a First Amendment claim? -- I sure hope not. The reason is because there is no interest there that's worthy of any protection whatsoever. But I guess this holding is consistent with the Sixth Circuit's overall concept of First Amendment protection -- it also decided that 5000 reprints of a Tiger Woods painting sold at $100 a piece was protected by the First Amendment (the original painting should be protected by the FA, but surely not the reprints).

Blogger Rick Karcher -- 4/20/2007 8:42 AM  


I think there is value to this information and that the First Amendment is designed to protect this information. At the most basic level (putting the question of undue pressure to one side for a second), the letter contained truthful information that would enable the students and their parents to make decisions about the ordering of their lives and participation in an important activity. On any sort of individual liberty theory of the First Amendment, that would be protected.

More broadly, the school must have a right to inform people, truthfully, about itself and the opportunities (academic, athletic, and extra-curricular) it affords. Several justices went after the TSSAA and the U.S. to ensure that, for example, the recruiting rule could not be applied to an advertisement or brochures sent to prospective students or to the public highlighting opportunities at Brentwood. The implication in the questions was that must be protected expression. Again, on any individual liberty model of free expression, we want the public to be able to receive this truthful information for use in ordering life.

Now, what might change things is the one-to-one contact between coach and prospective player--the degree of pressure or undue influence in *this type* of communication. But it seems to me that is a question of context, not content.

Blogger Howard Wasserman -- 4/20/2007 9:46 AM  

I understand why the FA should protect news reporting about current events and historical factual information because there is a substantial public interest there. This letter doesn't do that. You're saying that there is value to this information and therefore the FA is designed to protect this information. But has the Supreme Court ever held that the FA protects "information" or the "free flow of information"?

I also don't understand any analogy to commercial speech in this case. Commercial speech just means speech that proposes a commercial transaction. Commercial speech is not always protected by the FA. Maybe the justices were just trying to make the point that if Brentwood had used general advertisements and brochures it clearly would not constitute "undue influence" in violation of the association's rule -- not, as you suggest, to imply that it is necessarily protected by the FA.

Blogger Rick Karcher -- 4/20/2007 11:38 AM  

I think the justices were getting at a broader point: If the TSSAA tried to enforce against brochures, etc. under the rule, it might run into some 1st Amendment problems. Kennedy accepted that allowance as providing Brentwood alternative ways to get its message out--which is an important element of the constitutional analysis.

The whole purpose of the commercial speech rules is protecting the flow of information that the public will use to order its life, including what products and services to purchase.

As for 1st Amendment protection: Truthful, nonmisleading advertising for a legal product or service (such as a private school and the athletic opportunities it provides) is protected by the First Amendment, subject only to a balancing test that is, essentially, intermediate scrutiny--substantial government interest, regulating no more speech than necessary to serve the interest.

So if the TSSAA decided that any contact w/ student-athletes was "undue influence," even in a general brochure, I think (based on the argument) that some justices would see a 1st Amendment problem.

Blogger Howard Wasserman -- 4/20/2007 12:23 PM  

I agree that the value of the speech in question here is low, but the court has never wholeheartedly adopted Justice Stevens' approach of beginning FA analysis with the value of the speech in question.

Anonymous Anonymous -- 4/20/2007 2:56 PM  

It's not so much a "value" issue, because its value would depend upon who you ask. I think another way (and a better way) to ask the question is, what is the purpose of the speech? I'm not aware that the Supreme Court has ever held that "valuable information" or "the free flow of information" is always protected speech. If so, please tell me the case and the issue presented in the case. The Supreme Court has held that speech is protected in certain contexts (or as I put it, with certain purposes) -- i.e. news reporting purposes, literary purposes, expression purposes (e.g. political speech, art, possibly speech on Myspace, etc.). However, my syllabus hypo doesn't meet it, nor does this letter from Brentwood inviting prospective students to spring practice.

A great example is the N.Y. Times Privilege applicable to speech pertaining to public officials and public figures, and the Court's rationale for applying it -- to encourage robust, free and open debate about important political and social issues that affect our society.

Blogger Rick Karcher -- 4/22/2007 10:17 AM  

New York Times does not exhaust the scope of First Amendment protection. The contexts in which the Court has held speech is protected are much broader than New York Times or the list in Rick's most-recent comment. And context is not everything--some news reporting may not be protected, some literature may not be protected. And much advertising, handbilling, and solicitation (not on the list) is protected.

I do not believe that Coach Flatt's letter informing the players about spring practice is meaningfully different from a pharmacy, casino, or liquor store advertising the availability and prices of its products and services. The Court has held that all of these are protected (assuming the information is true). And the basis for those cases has been that government cannot "protect" the listening audience from information--which I think translates into a recognition of protection for the flow of truthful, non-misleading information to the public.

This is not to say that Brentwood should or will win. But it is a question of starting point. There is nothing wrong with a letter such as this or the information it communicates and there may be some value to it for the recipient; it is only if the government can show some interest that justifies prohibiting the letter (which I think the TSSAA has) and that interest prevails in the balance (which it probably will here).

Blogger Howard Wasserman -- 4/22/2007 12:55 PM  

Howard, a point has been missed here: the letter (re: spring practice at Brentwood) that was sent to the players was sent at a time that they WEREN'T students at the school (if I understand the case right, the students were in eighth grade and Brentwood starts at ninth grade; the letter was sent in the students' eighth-grade fall or spring semester). THAT usually consitutes "recruiting" in most states; had that letter been sent while these 12 students were going to Brentwood, no "recruiting" would take place--they're already there.
To me, this is open and shut; it's no different from the coach at Florida, say, sending the same letter to 11th-or 12th-grade students (not going to Florida at the time) "inviting" them to spring practice--this is recruiting, plain & simple. It is not allowed under the rules of the high-school association in Tennessee, which Brentwood is a member of (if I understand right); therefore, Brentwood is under the authority of the TSSAA, which can set down discipline against the school.

Anonymous Anonymous -- 4/22/2007 1:41 PM  


I didn't say that the NY Times Priv. exhausts the scope of FA protection by any means, I was just using it as an example of protected speech. The only situation I can think of in which news reporting would not be protected is if the information was false and it defamed somebody (and with actual malice if public officials and figures). It would seem that the govt. should not be able to prohibit pharmacy, casino, liquor, etc. advertisements because they constitute legal products, not because it's protected by the FA. Why shouldn't somebody be able to advertise about a legal product/service they provide?

So my syllabus example above is protected by the FA? I mean, it sounds as if the way to get around any rule/regulation/law is just for one to argue that they have a FA right. Let's say I send a letter to select people inviting them to engage in prostitution at my home tonight. If the state attempts to charge me with a crime, do I have a FA defense?

Blogger Rick Karcher -- 4/22/2007 2:19 PM  


Your understanding of the facts is accurate and there is no question that what Brentwood's coach did falls within the TSSAA's recruiting rule. But the issue is whether that rule is permissible under the First Amendment. Now, your analysis (Brentwood voluntarily joined the TSSAA, so it can be subject to any reasonable rules of the TSSAA) probably is some version of where the Court will go in deciding this case. But the point is that it is necessary to subject the rule to some degree of constitutional scrutiny. And several judges in the lower courts saw this speech as subject to a different analysis.


Even if a product or service is legal, it still may be subject to government regulation, including regulations intended to deter use of the product or service by trying to decrease demand, even if the product/service is not outlawed. If advertising is not potentially within the ambit of the First Amendment, then a permissible regulation to decrease demand would include prohibitions on advertising for the product so that fewer people will want to use it. The theory would be "We could have banned the product, but we are taking the lesser step of trying to decrease demand through reasonable regulations, such as by not allowing producers to advertise." This actually was the state of things until 1974 (when the Court first held that commercial speech received some level of protection) and even until about 1998, when the Court changed its commercial-speech doctrine to make it more protective. Otherwise, the mere fact that the product/service was lawful did not mean advertising had to be allowed.

All of which is beside the point for this case, because I do not see the Court treating this as a commercial-speech case. I think your soliciting-prostitution hypo comes close to the mark, because the general view is that private, person-to-person expression receives less protection than mass-distributed speech.

The problem with the analogy for these purposes (and this goes to Anonymous' argument that this is "recruiting plain & simple") is that the conduct discussed in the Brentwood letter--8th graders participating in spring practice--was permitted under TSSAA rules at the time. So the letter was solicitation (or recruitment) to engage in a legal/permissible activity. That does not mean the First Amendment bars the enforcement of the recruiting rule here, of course; only that the prostitution analogy is not on point.

And to hit on your broader point (in brief): Yes, at some level the First Amendment may give me an exemption from otherwise applicable laws. The point in most First Amendment cases and scholarship is figuring out when that exemption is required.

Blogger Howard Wasserman -- 4/22/2007 8:58 PM  

I enjoyed the discussion. I'm going to close by again asking which Supreme Court case held that "the free flow of information" is protected speech, which is an all-encompassing standard that would completely swallow the FA protected speech categories of news reporting and the expression of ideas.

Also, in your view, would this case turn out different (strictly from a FA analysis, not undue influence) if the exact same letter to these parents was placed in a brochure or on a billboard? In my prostitution letter hypo, would I be protected if I instead put the same exact invite letter on a billboard?

Blogger Rick Karcher -- 4/23/2007 11:25 AM  

Try this. It is from a 4-Justice plurality in "44 Liquormart v. Rhode Island" that captures the idea.

"The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct. That presumption accords with the essential role that the free flow of information plays in a democratic society. As a result, the First Amendment directs that government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends."

Or, in a different context, from Press Enterprise II:

"Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny."

The general idea is that the First Amendment reflects and protects an interest in maintaining the free flow of information and ideas between speakers and listeners. That is not the be-all of First Amendment protection, but it is an aspect of it. And it means that, at least as a default, the dissemination of truthful information about lawful things is protected, again subject to some balancing.

If Brentwood's message about spring practice truly were sent to the public at large as on a billboard or in a flier sent to all prospective parents, I think it would be constitutionally protected. Or at least the TSSAA would have to come up with a different interest to support prohibiting that message.

Again, participation in spring practice was permissible in 1997. Thus, unlike your prostitution hypo, the underlying conduct being solicited is lawful. That makes the recruiting rule a rule targeted at expression qua expression, rather than an add-on to a general ban on conduct.

Blogger Howard Wasserman -- 4/23/2007 12:42 PM  

I don't want to belabor the point, but in the first quote you provided(Liquormart), I'm assuming that was a commercial speech case? I see commercial speech cases as unique because the govt. is really trying to prohibit/reduce permissible conduct by doing indirectly (advertising restrictions) what it can't do directly (ban the conduct).

With the second quote, I can't tell what speech is at issue, but it sounds like it pertains to either criticism of public officials (protected political speech) or dissemination of news about public officials (also protected speech).

Blogger Rick Karcher -- 4/23/2007 2:24 PM  

The second case was a right-of-access-to-open-courts case. The first was a commercial speech case. But the principle behind the protection of commercial speech applies fairly readily to non-commercial speech. Government could

On a Westlaw search, I found 34 cases (that used the phrase "free flow of information" or "free flow of information and ideas." These included commercial-speech cases, access-to-proceeding cases, and some copyright cases. None of them state "We hold that the First Amendment protects the free flow of information," but nothing is ever that obvious (unfortunately).

But I think the cases establish the underlying point that the First Amendment does exist, in some part, to ensure the free flow of information and ideas to the public (what ideas precisely can be a distinct subject of debate) and that a government regulation that targets speech, and thus reduces that flow of information, is at least going to be subject to some First Amendment scrutiny. Whether it survives that scrutiny or not is a different issue.

Blogger Howard Wasserman -- 4/23/2007 2:56 PM  

I don't believe the FA protects "information," but by protecting speech, it does protect the "flow" of information. But that really misses the point of the Association's appeal. Although athletic recruiting speech is not the sort of core speech that the FA was intended to protect, we may assume that this speech is entitled to some protection (as is commercial speech, although the whole doctrinal distinction between commercial and non-commercial speech is questionable at best). The critical question in this case is what the standard should be for determining the level of FA protection that applies to this speech, and that is where the distinction between contractual power and sovereign power in Umbehr becomes critical. As Justice Ginsburg recognized during the argument, surely Brentwood's voluntary agreement to join TSSAA and abide by its rules means something in the constitutional analysis. In fact, the contractual nature of the restriction on recruiting speech is critical to determining the type of FA analysis to be applied.

That is the critical issue, and that is the reason the SG entered the fray. The most problematic aspect of the Sixth Circuit's majority opinion is not that it affords some FA protection to the speech, but rather the nature of the protection it affords. The Sixth Circuit majority treated the restriction as the equivalent of an exercise of sovereign police power on an unwilling general public and applied an "intermediate scrutiny" that is used in such cases. But even though TSSAA is a "state actor," it possesses no sovereign power and can impose the recruiting prohibition on Brentwood only because Brentwood each year chooses to join TSSAA and accept the benefits of membership in exchange for its agreement to abide by the TSSAA rules.

If the Court applies the "public concern" component of the FA test used in Pickering, Connick, and Umbehr, then there is no need for even the deferential balancing of interests here, because a letter inviting twelve boys to football practice is not speech on a matter of public concern.

But even if the letter is assumed to touch on some matter of public concern, the restriction is permissible under the FA using the deferential balancing applicable to contractual speech restrictions. At the trial of this case, every single witness who had any experience or expertise in school athletics recognized this letter as a recruiting letter. The restriction on these sorts of communications is reasonable and germane to the purposes of the Association in general and to the purposes of the restriction in particular. In the context of a contractual restriction tested under the unconstitutional conditions analysis used in Sindermann, Pickering, Connick, Umbehr, Rust, American Library Association, and a host of other cases involving non-sovereign restrictions on speech, this speech restriction passes FA scrutiny.

A couple of factual matters justify some clarification. It is true that spring practice participation by students not yet attending the school was a permitted activity. But that is a "red herring." Assuredly the existence of a permitted activity does not compel the conclusion that any means of securing someone's attendance at that activity must be permitted. Not even Brentwood would question a rule that prohibits offering a monetary inducement to encourage a student to enroll at a school for athletic reasons, even though enrollment at the school is a permitted activity.

As for this letter, there are a few critical facts that the Court seemed aware of. As Justice Souter understood, each year there are several students like these who sign enrollment contracts for the ensuing year but do not matriculate. As Justice Scalia recognized, this was a letter from a coach to impressionable 13 and 14 year old athletes. It did more than just "inform" them of an activity. It told them that it would be in their best interest to attend, it welcomed them to the team, and it was signed "Your Coach." The letter had the desired effect on these children. In the past, no more than one incoming eighth grader had ever attended a Brentwood spring practice. In the year of the letter, all twelve recipients attended (and anyone who has participated in football knows that spring practice is not something one does for fun). Some even skipped scheduled activities at the schools they were attending to attend practice.

Finally, it is a mistake to say that the information in the letter was all truthful. In fact, the coach attested more than once to his belief that attendance at spring practice was not a good idea for eighth graders because of the likelihood that they would be intimidated by the larger and more mature older players. But he told these eighth graders in his letter that he believed attendance would be in their best interest.

This FA claim was manufactured out of whole cloth and made its way this far thanks to some clever lawyering that guided the lower courts down the wrong analytical path. Hopefully for the sake of high school sports and for the sake of the children who participate in school sports, the Supreme Court will get it right.

Anonymous Rick Colbert -- 5/04/2007 10:32 AM  

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