In the post below, I wrote:
6. Finally, a warning: The liberals’ general undue influence discussion — as opposed to the reference to the risk of undue influence as a justification that sufficed when the government was organizing a voluntary sports league — appears in what is otherwise the principal opinion for the Court. I suspect that some people — perhaps including some reporters — will misread the discussion as a majority view, or at least a plurality view (which is to say the view taken by fewer than all Justices, but still the view that commanded the most adherence on the Court). Always remember that it is a minority view, and the majority view is that expressed in Justice Kennedy’s opinion.
I just noticed that the L.A. Times report on the case — which I should stress had to be prepared on very short notice, a situation that naturally leads even excellent journalists to occasionally err — says, among other things:
The school, its headmaster and the coach argued in federal court that they had a free-speech right to contact students who had already expressed an interest in transferring. They won in two lower courts, which ruled the suspensions violated their 1st Amendment rights.
The Supreme Court disagreed, noting the private school had been judged to have violated the rules of the state athletic association, of which it was a member. The “anti-recruiting rule strikes nowhere near the heart of the 1st Amendment,” Stevens said.
He cited earlier rulings as a precedent that said lawyers would be disciplined for some actions to recruit clients. “In our view, the 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,” he said.
Both of the Stevens quotes come from his reasoning in Part II-A for four Justices, not from a majority opinion. The majority of Justices specifically rejected the legal analogy between lawyer speech — which the government may regulate even as sovereign, rather than as controller of a voluntary association — and speech by coaches at private schools. And the majority of the Justices did not endorse the view that the “anti-recruiting rule strikes nowhere near the heart of the 1st Amendment” in the sense Justice Stevens meant, which is that they involved mere “direct, personalized communication in a coercive setting.” (Maybe they would in a different case endorse the general view that recruiting speech just isn’t that important for First Amendment purposes, but they didn’t endorse it here.)
Most of the story is good. But it seems to me a mistake to frame these quotes as coming from “The Supreme Court” when they came from what a portion of the opinion that was only endorsed by a minority of the Justices.
UPDATE: Reuters makes a similar error. It begins correctly in two paragraphs generally summarizing the result, and correctly writes in the next paragraph, “Justice John Paul Stevens said in the court’s opinion that the high school had voluntarily decided to join the association.” But the following two paragraphs, and the closing paragraph, all quote or paraphrase the four-Justice opinion, not the opinion of “a unanimous U.S. Supreme Court” or even the Court’s majority:
“The anti-recruiting rule strikes nowhere near the heart of the First Amendment,” he wrote. “(The association) has not banned the dissemination of truthful information relating to sports. It has only prevented its member schools from recruiting individual middle school students.”
Stevens said the association’s limited regulation of recruiting posed no significant free-speech concerns, given that member schools remain free to send brochures, post billboards or otherwise advertise their athletic programs.
[Two paragraphs describing the association’s arguments and the facts omitted. -EV]
“In our view,” Stevens wrote, “the 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.”