Today’s Tennessee Secondary School Athletic Ass’n v. Brentwood contains a fascinating split between the conservative and the liberal Justices (an oversimplification, I realize, but one that’s useful here) on when a class of speech may be restricted because of “the dangers of undue influence and overreaching that exist” in this class.
1. First, let’s briefly note (and then largely set aside) the result and the 8-1 reasoning that produces it: The Tennessee Secondary School Athletic Ass’n, the Court held, may restrict certain recruiting-related speech of its member schools, because “[the schools] made a voluntary decision to join TSSAA and to abide by its antirecruiting rule.”
“This is not to say that TSSAA has unbounded authority to condition membership on the relinquishment of any and all constitutional rights”; “TSSAA can similarly impose only those conditions on [public-concern] speech that are necessary to managing an efficient and effective state-sponsored high school athletic league.” But even if this speech is treated as public-concern speech, this necessity is present here because of the “common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition betweenhigh school teams, and foster an environment in which athletics are prized more highly than academics.” Only Justice Thomas disagreed here, and would have upheld the TSSAA’s actions because he would have concluded (contrary to the Court’s past decision in the same case) that the TSSAA wasn’t a government actor.
2. Now, to the liberal/conservative disagreement. Justice Stevens’s opinion for himself plus Justices Souter, Ginsburg, and Breyer reasons — even independently of the “schools made a voluntary decision to abide by the rule” argument — that “there is a difference of constitutional dimension between rules prohibiting appeals to the public at large and rules prohibiting direct, personalized communication in a coercive setting.” This difference can justify speech restrictions even when the government is acting as sovereign, and not just as organizer of a voluntary athletic league; if the liberals’ view were accepted, then recruiting restrictions and the like would be upheld even if they were imposed on purely private schools in private associations.
Justice Stevens points in support to a commercial advertising case, Ohralik v. Ohio State Bar Ass’n (1978), which upheld a restriction on face-to-face attorney solicitation of business, on the grounds that such solicitation posed an especially grave risk of undue influence. The Court later made clear that this rule didn’t apply to all face-to-face speech, including commercial advertising (a category that includes individual solicitation of business); Edenfield v. Fane (1993) declined to extend Ohralik to accountants, on the theory that they’re not as persuasive as lawyers, and that their potential clients aren’t as likely to be in trouble and underinformed as lawyers’ potential clients. Still, Justice Stevens reasons,
[T]he dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader. After all, it is a heady thing for an eighth-grade student to be contacted directly by a coach … and invited to join a high school sports team. In too many cases, the invitation will come accompanied with a suggestion, subtle or otherwise, that failure to accept will hurt the student