Conservative vs. Liberal Justices on Speech and Undue Influence:

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's chances to play high school sports and diminish the odds that she could continue on to college or (dream of dreams) professional sports. Cf. App. 119 ("I do feel that getting involved as soon as possible would definitely be to your advantage"). Such a potent entreaty, playing as it does on youthful hopes and fears, could well exert the kind of undue pressure that "disserve[s] theindividual and societal interest ... in facilitating 'informed and reliable decisionmaking.'" Ohralik.

Justice Kennedy, whom Chief Justice Roberts, Justice Scalia, and Justice Alito joined, and with whom Justice Thomas agreed on this, differed. Quoting Edenfield, Justice Kennedy concluded that "Ohralik's holding was narrow and depended upon certain 'unique features of in-person solicitation by lawyers' that were present in the circumstances of that case."

3. It seems to me that, under the Court's precedents, the conservatives are right and the liberals are wrong. Even if in-person individualized speech by coaches to prospective students is more like the lawyer-prospective-client speech in Ohralik rather than the accountant-prospective-client speech in Edenfield, this case involved a letter. And even as to lawyer advertising, the Court has expressly distinguished (in Shapero v. Kentucky Bar Ass'n (1988)) face-to-face speech from letters, holding that the latter may not be restricted on a "risk of undue influence" rationale:

In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." Second, "unique ... difficulties" would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is "not visible or otherwise open to public scrutiny." Ohralik. See also ibid. ("[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession"). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.

This opinion was joined by Justice Stevens, though Justice Stevens's opinion in Brentwood doesn't discuss why Ohralik (lawyer's face-to-face solicitation) is more analogous than Shapero (lawyer's solicitation letter) to Brentwood (coach's solicitation letter).

(Note that Florida Star v. Went for It (1995) upheld a restriction on certain lawyer solicitation letters, but on special grounds that don't seem applicable here, and specifically declining to rely on an avoiding-undue-influence/coercion rationale. Note also that Justices Stevens, Souter, and Ginsburg joined Justice Kennedy in dissenting in this case, though Justices Scalia, Thomas, and Breyer were in the majority.)

4. More broadly, it seems to me that the liberals' view, if adopted, would have pointed towards considerably broader restrictions on targeted speech more generally. This speech was not itself terribly coercive. Though it would be read by minors, the decisions about it would be made by parents. The coach's argument, which is that deciding on a school early enough that one can participate in training earlier, provides useful information to parents — self-interested on the school's part, to be sure, but potentially also in the student's interest. Because the letter is in writing, a total prophylactic ban on all pre-enrollment recruiting letters seems broader than necessary to prevent real coercion.

A logic that finds enough risk of coercion here to justify a broad ban on pre-enrollment recruiting letters strikes me as easily extensible to a wide range of other speech, especially one-to-one but also the very "appeals to the public at large" that Justice Stevens purports to distinguish. Risk of coercion and undue influence is a matter of degree. One can often identify some such risk in any communication. The question is how high the Court sets the threshold, both as to restricting allegedly coercive speech and as to restricting whole genres of communication as a prophylactic measure. The logic of Justice Stevens' opinion would have, in my view, set the threshold quite low.

5. Note also that all the Justices cited commercial advertising precedents without discussed whether they applied here. After all, In re Primus, a companion case to Ohralik, reached the exact opposite result as to individual solicitations (albeit by letter rather than in-person) by cause lawyers whom the client wouldn't have to pay. Part of the Court's rationale was that one case involved commercial advertising and the other didn't:

At bottom, the case against [Primus] rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "propose[s] a commercial transaction." See Ohralik. In the context of political expression and association, however, a State must regulate with significantly greater precision."

It may well be that a private school's solicitation to would-be students — whether ones who will have to pay some money, or ones who will be given a full scholarship but will offer the school their athletic services — should be treated as commercial advertising (a category that the Court has somewhat imprecisely called "commercial speech," but that it has generally, albeit not always, defined as speech that proposes a commercial transaction). But it's too bad the Justices didn't explain precisely why this is so. Among other things, this silence might lead some readers to treat Justice Stevens' opinion as supporting greater restrictions on individually targeted speech generally, rather than solely on individually targeted commercial advertising.

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.

Prediction of Likely Newspaper Error Comes True:

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."