Friday, June 25, 2021
LoMonte and Hamrick on Running the Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes' Right to Speak to the News Media @FrankLoMonte
Frank LoMonte, University of Florida, and Virginia Hamrick, First Amendment Foundation, are publishing Running The Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes’ Rights to Speak to the News Media in volume 99 of the Nebraska Law Review. Here is the abstract.
The curtain of secrecy that tightly envelops college sports makes it difficult for athletes to blow the whistle on abusive conditions without fear of suffering retaliation. The seemingly obvious recourse for a player who distrusts the internal complaint process – to take the complaint public – is foreclosed at many colleges, because athletes are forbidden from speaking to the media without approval from the athletic department. Is this legal? Can a public institution enforce a categorical prohibition on speaking without running afoul of the First Amendment? Despite the widespread perception of university athletic departments, the answer almost certainly is “no.” This article augments the growing body of scholarship about athletes’ rights by focusing on one particular and largely overlooked right: The right to speak freely to the news media. The article concludes that athletes’ right to discuss issues of public importance – including issues about the safety and integrity of the athletic program – is protected by the First Amendment at state universities, but is routinely being infringed at institutions across the country. The right to speak to the media is foundational to athletes’ ability to blow the whistle on wrongdoing and safety hazards within their own teams, which might otherwise go unaddressed. The article analyzes the potential legal theories that a university might offer in defense of a blanket prohibition on unauthorized communication with the news media: That athletes have diminished free-speech protection because they are employees or because they are students, or that athletes voluntarily waive free-speech rights as part of the contractual bargain for receiving scholarships and other material benefits. The article finds neither theory convincing, demonstrating that neither constitutional law nor contract law provides a defensible basis for enforcing a mandatory-approval regimen before athletes may speak with journalists.The article concludes with recommendations for reforming constitutionally dubious media policies across the college athletic world.
Download the article from SSRN at the link.