ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, September 27, 2021

Ohio State Linebacker, Inspired by Cheerleader, Tests the Limits of the First Amendment

Last month, I posted about Mahanoy Area School District v. B.L., a case in which the Supreme Court held 8-1 that a school could not punish a cheerleader for a profane Snap expressing frustration with, among other things, school, softball, and cheerleading.  The Court held that, while schools can regulate some off-campus speech, it could not punish B.L. for exercising her First-Amendment rights in ways that did not threaten significant disruption of school activities.

How RightsThe case is of interest to this blog (at least arguably), because B.L. had signed a form as a condition of her participation in team activities, in which she promised not to say negative things on the Internet about her school or cheerleading.  None of the courts that heard the case gave any weight to B.L.'s promise, and while I don't think the promise should be given dispositive weight, I, following Jamal Greene's How Rights Went Wrong, think courts should weigh all the interests implicated in the case before them and that the school's interest in holding B.L. to her promise is one such interest.

Over the weekend, a similar situation arose.  K'Vaughn Pope, a linebacker for the Ohio State Buckeyes, apparently was upset about his lack of playing time.  According to ESPN, after conversation with several members of the coaching staff, Mr. Pope was escorted from the field.  He then took to Twitter and, while the game was still in progress, in a since-removed post, wrote "f--- Ohio State."  He also wrote "good lucc to my teammates" and that one is still up.

Reporters inquired of Ohio State coach Ryan Day whether Mr. Pope was still on the team.  Coach Day wisely equivocated, but the question assumes that disciplining a student at a state university for comments critical of that university is permissible under the First Amendment.  Or perhaps the reporters thought it appropriate to discipline a student-athlete for misspelling "luck" in a comment viewable by the public.  

As reported here, Coach Day then spoke a bit about commitments, which may or may not be contractual, and about other things:

[W]hen you make a commitment to a team at the beginning of the year, when you make a commitment to the Ohio State Buckeyes, that’s what you do. One of the hard things is that you have to play certain guys, and you have to make some decisions on who’s playing in those games and you just really count on guys to be great teammates if they’re not getting on the field … What it really is, is that guys want to play and you can’t play everyone. And then frustration kicks in.

I'm guessing that few will think that the First Amendment prohibits Coach Day from disciplining Mr. Pope for his conduct and speech.  If so, why can he be disciplined when B.L. could not?  

Coach Day's remarks are sensible.  I'm not a fan of college sports, but if they are to exist, if public high schools are to field sports teams, it seems obvious to me that coaches ought to be empowered to discipline athletes for conduct that they deem detrimental to their teams, subject to internal due process protections permitting students with means of appeal.  The notion that the First Amendment would have anything to say about students' non-political speech critical of their coaches' decisions strikes me as not just wrong but ludicrous.  And the notion that federal judges are better situated than school administrators to determine where to draw the line between permissible and impermissible disciplinary measures strikes me as more evidence of the bizarre sacralization of a few privileged "rights." We infantilize ourselves when we act as though the Constitution has to sort out all our problems.

https://lawprofessors.typepad.com/contractsprof_blog/2021/09/ohio-state-linebacker-inspired-by-cheerleader-tests-the-limits-of-the-first-amendment.html

Commentary, Recent Scholarship, Sports | Permalink

Comments

I definitely agree as before with Brandi Levi. Like her case, the penalty (no pun) here does seem a little extreme—although, AFAICT, it doesn't involve any denial of, you know, actual education—but as you say, trying to make a 1A issue out of it is just a complete mismatch.

And I'm sympathetic to the player a little since for kids even in college or in their early 20s these days, it's just inevitable you'll make an outburst on social media at some point that you'll not only immediately regret, but also have no easy way of retracting. I'd argue the social media companies, and even insitutions like OSU here, share some blame too. The former obviously have a business incentive to encourage people to constantly overshare every facet of their lives. And the latter it seems encourage social media use too, at least when it serves their purposes by bringing good PR to the institution.

But I also agree that, to the extent there are some issues that arise from these kinds of incidents, they should really be dealt with via due process. Probably at the end of the day, if bigtime college sports are going to stick around, they have to essentially make the players into unionized employees.

Posted by: kotodama | Sep 27, 2021 11:35:27 AM

Just to clarify. I don't know what the penalty will be. He may get kicked off the team; he may be suspended for a few games; he may just get a talking to. He may also decide on his own that it's too frustrating to work as hard as he has to and never get to play. But there may be an athletic scholarship at issue, and that complicates matters here as compared with B.L., as it may bring issues relating to his access to education into play.

Posted by: Jeremy Telman | Sep 27, 2021 2:51:23 PM

Fair enough. Anything short of being permanently ejected from the team doesn't seem particularly excessive. Even there, if he's not getting playing time anyway, does it make all that much difference to eject him?

The thing about playing time especially is, you don't really have an entitlement to that in the first place. I don't know much from college sports admittedly, but I assume the coach can play or bench anyone at any time, no matter if the player views himself as having earned the playing time by "working hard." Again, this is a situation where unionization or something similar would have a positive effect, because this player could still get some baseline "salary" even absent the playing time.

I also don't know about the potential academic angle. The NCAA rules are very extensive, so I wonder if any rule covers this situation? Of course, query whether this guy is doing it for the free education or not. (I certainly don't look down on anyone who is genuinely interested in that part.) Unionization could help here too, as the subset of players who just want to do sports could dispense with the whole "student-athlete" fiction.

Posted by: kotodama | Sep 27, 2021 5:38:02 PM

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