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Sunday, November 13, 2016

ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted by Howard Wasserman on November 13, 2016 at 10:42 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink

Comments

I'd love to see the school try to thread the needle in terms of NCAA athletes being more like employees for First Amendment purposes but are just students when it comes to amateurism.

Posted by: Mike | Nov 13, 2016 11:44:20 AM

"ULL suspends four players for caring about the election"

No. They did not. Your editors need to work on headlines.

This doesn't justify the suspension but figure since part of law school education is carefully examining what legal disputes are about, saying they were suspended for "caring" is somewhat questionable. It is not simply about being "engaged" either.

Part of what one learns in college is how to interact in certain situations, including time, place and manner rules regarding classrooms, locker rooms etc. Is a state college locker room a public forum? What you do in a locker room with other players is not the same as what you do in your dorm room.

The content based analysis is another matter. I am concerned about that though wonder how consistent use of language is & how often the language is specifically authorized like the example given.

The 2011 bowl win song had these lyrics:

"“Beat one of you bitch niggas up like John Cena / Them hoes on Young Money, tell them hoes we comin’ / Boy, we get it poppin’, we ain't savin’ hoes, we swappin’.”

Charming really. Free speech dictates you have every right to sing such songs but it also lets people criticize a team having offensive lyrics about "hoes" and "niggas" to celebrate bowl wins. I assume some on the team rather not have such speech & if there is a policy in place against it, doesn't seem to violate free speech.

Ditto if the song selectively honored Jesus Christ or something. Again, if it was on their own time, not in a locker room or while they were doing team stuff, blocking that would be a violation of the 1A. OTOH, if such a policy is selectively enforced, so language is suddenly an issue when Trump wins or when Muhammad is honored, there would be issues.

Posted by: Joe | Nov 13, 2016 1:09:07 PM

Thanks, I write my own titles. I am not a news site, so I reserve the right to have some fun with them.

T/P/M restrictions must be content-neutral. This was not content-neutral--they singled out a) profanity and b) a political message. And I am not sure it wasn't viewpoint-discriminatory--that we would not be having this conversation if the players had criticized Hillary Clinton.

Posted by: Howard Wasserman | Nov 13, 2016 7:48:14 PM

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