The First Amendment Speech Rights of College Student Athletes

Abstract

The First Amendment rules for resolving free-speech claims brought by student-athletes are remarkably murky. Defendants sometimes win on the defense of qualified immunity because there is no clearly established law for circumstances like those presented, and when courts do reach the claims’ merits, they sometimes issue rulings that raise as many questions as they answer. These cases are often difficult because they bring into play two important principles that stand in strong tension with one another: (1) college student-athletes are entitled to broad freedom of expression as adult members of postsecondary academic communities and (2) when the government launches a goal-seeking project and individuals agree to join it, the project’s leaders are entitled to regulate the participants’ speech in ways reasonably calculated to ensure the project’s success. This Article contends that the tension between those principles cannot be satisfactorily resolved with the absolutist presumption that, when joining their respective teams, student-athletes implicitly waive all First Amendment objections to speech restrictions that their coaches impose for the good of the team. The Article argues that the best way to reconcile the two principles is by drawing lessons from the First Amendment law of public employment. Public colleges and universities should not face any First Amendment restrictions when regulating speech that student-athletes are required to produce as members of their teams. But for all other student-athlete speech, a school should be permitted to impose restrictions only when the student-athlete’s interests in producing the expression are outweighed by the school’s interests in ensuring that their teams compete at peak capacity on gamedays and in securing compliance with articulated standards of sportsmanship.

Keywords: speech, athletes, first amendment, college, university

JEL Classification: K19, K39