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Friday, November 04, 2016

Locker room talk

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.

[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.

Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

Posted by Howard Wasserman on November 4, 2016 at 03:37 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink



I am no expert on the rationale behind the American conception of free speech, but, to me, one rationale for strict content neutrality is if, instead, one were to embrace a system in which lines are drawn between acceptable and unacceptable content, then the lines would have to be drawn by someone. Who would that someone be? A person or group with political power, of course. That is true by definition. Hence, lines would likely be drawn in a manner which disadvantages those who lack political power.

Posted by: gdanning | Nov 7, 2016 11:21:22 AM

I'm honestly curious as to what you think is so great about the American conception of free speech. I've never understood what's so valuable about speech generally (I understand what's valuable about certain types of speech) and why it warrants so much more protection than other sorts of conduct. I don't see why the team's expression of their feelings about the women's soccer team is so much more worthy of protection if it comes in the form of a letter than if it came in the form of some relatively minor non-verbal act of sexual harassment, or stalking, which would also express the team's attraction to/sexist derogation of members of the women's soccer team, and which conceivably might cause just the same amount of discomfort and offense as the letter's caused. (Perhaps less, given the letter's publication.) The distinctions one might draw that immediately occur to me - speech is categorically more expressive, speech is categorically less harmful, speech has a lot more to do with the personal autonomy of the speaker than other sorts of conduct - seem just wrong on their face. Obviously I haven't read the literature justifying our conception of speech and there may be some very sound arguments you could point me to.

Posted by: Asher Steinberg | Nov 5, 2016 1:16:33 PM

The debate between HW and Blurp is interesting to me.

Blurp argues there is a middle ground here, respectful of the general principles of free speech, regarding the usage of this penalty as applied to the privilege to play soccer. But, helpful to narrow the issue. See also, HW's broad appeal to free speech principles.

We are not dealing with students who play soccer simply privately talking about women in a sexist fashion. So saying soccer is a privilege to me is too broad of an argument. Thus, e.g., if a team says respectful speech should take place in a locker room (time, place & manner rule), and the rule is violated, it is not obviously the same as if they were private discussing in emails with each other. The issue here is a practice of the TEAM itself, one that crudely disrespects another TEAM.

The cancellation of the rest of the season seems like an excessive penalty on some level. And, it would be important to assign blame appropriately to the specific players, not punish them wrongly for only past action. [Compare: taking away wins from the 2012 team or something from past players involved.] But, on PRINCIPLE, what is acceptable here? One game, after all, given the unconstitutional conditions principle would seem to be illegitimate for "bad speech" that is protected under the First Amendment.

I disagree with the professor at times in these debates and think at times it is a matter of me thinking a more nuanced approach is warranted. I might even get to the same place in specific cases. Of course, that might be a problem on my part, not giving enough respect to free speech. OTOH, free speech debates often involve narrower questions even if one or the other side speak in broad terms.

Posted by: Joe | Nov 5, 2016 9:32:48 AM

If you want to have a conversation, we can--and you can explain what I am getting wrong about free expression. If you want to insult me, take it somewhere else.

Posted by: Howard Wasserman | Nov 4, 2016 11:47:55 PM

Honestly, Howard. What are you talking about?

The American conception? Or the wassermanian extreme reconception thereof?

Posted by: Blurp | Nov 4, 2016 11:45:55 PM

Not universes that have the American conception of freedom of speech.

But we disagree on priors--the extent to which any conception of free speech does/should limit Harvard here. So let's just leave it there.

Posted by: Howard Wasserman | Nov 4, 2016 11:29:51 PM

Why, exactly, would "we hope" that, Howard? And what difference does it make even if we do?

Playing intercollegiate soccer--which, incidentally, I did--is a privilege, not a right. No school is required to let you play, or to pay for your equipment and meals and training, and nothing about the first amendment changes that. Who cares if this is constitutionally protected speech, as you too glibly claim? Harvard can abide the first amendment and still not permit these idiots to play on its NCAA teams. In some universes, Howard, uttering vile and sexist slurs carries a price.

Posted by: Blurp | Nov 4, 2016 10:08:05 PM

Dan: I think the OSU comparison fails for two reasons: 1) The conduct did violate school regulations against hazing and 2) the conduct occurred in official band activities, when coaches were present.

Blurp: Many private schools at least purport to hold themselves to the First Amendment, purely voluntarily. So we would hope that Harvard would choose not to punish student-athletes where a public university could not punish its student-athletes (again, putting to one side whether a court might give even a state university greater control over student-athlete speech--to which I do not know the answer).

Posted by: Howard Wasserman | Nov 4, 2016 7:22:51 PM

I think the more relevant comparison should be to the firing of the director of the Ohio State University's Marching Band in 2014. Instead of banning the band from all normal marching band functions (which would have resulted in a catastrophic backlash from OSU alumni, including non-band alumni), they fired the director. But the reasoning was very similar to this Harvard situation: It was for not-illegal activities that were committed by past incarnations of the band (primarily under the previous director), but still embraced by the then-current band members.

Posted by: Dan Baker | Nov 4, 2016 5:20:49 PM

It is an "extraordinary measure," sure. Fine. If you say so.

But what would you have them do instead? And is being "lawful" the right measure here? What's wrong with Harvard holding itself -- and, say, the athletes it promotes and supports at great expense -- to a higher standard than that?

Posted by: Blurp | Nov 4, 2016 4:48:42 PM

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