Facts of the Case

Brentwood Academy, a private school, was a voluntary member of the Tennessee Secondary School Athletic Association (TSSAA). After Brentwood's football coach violated TSSAA recruiting rules by contacting some prospective players at other schools, the TSSAA imposed various penalties on Brentwood. Brentwood sued the TSSAA, claiming that its First Amendment and Due Process rights were being violated. The Supreme Court had ruled previously that because the TSSAA was composed primarily of public schools, it was a state actor subject to the limitations of the Constitution (see Brentwood Acad. v. TN Sec. School Ath. Assn. No. 99-901). Accordingly, the District Court faulted the TSSAA for violations of Brentwood's constitutional rights and threw out the TSSAA's penalties.

On appeal, the TSSAA argued that it had not exercised the "police power" of the State, but merely enforced a voluntary contractual agreement with Brentwood. The U.S. Court of Appeals for the Sixth circuit rejected this argument, characterizing the TSSAA's actions as those of a "government regulator." The Sixth Circuit held that the state interest in regulating athletic competition was not substantial enough to counter-balance Brentwood's First Amendment rights, and it affirmed the lower court's ruling for Brentwood.

Question

Does a voluntary association composed primarily of public schools violate the First Amendment's protection of free speech when the association punishes a member school for violating athletic recruiting rules that the school agreed to follow?

Conclusion

In a unanimous opinion written by Justice John Paul Stevens, the Court ruled that "[t]he anti-recruiting rule strikes nowhere near the heart of the First Amendment." Brentwood's speech rights do not extend to potentially coercive one-on-one communications between a coach and potential students, especially after the school voluntarily agreed to the anti-recruiting rule. The Court drew an analogy to the case of Ohralik v. State Bar Assn., in which the justices had ruled that a lawyer's in-person solicitation of clients was not protected speech. In that case as well as Brentwood's, activities with a potential for pressure, misrepresentation, or coercion were found to be outside the First Amendment's scope even though speech was involved. The Court also considered Brentwood's voluntary acceptance of the anti-recruiting rule to be significant. The TSSAA is allowed to impose limited conditions on the free speech of its members as long as these conditions are necessary for its purposes as an athletic league, and "the First Amendment does not excuse Brentwood" from abiding by them. In concurring opinions, a narrow majority of justices disagreed with Justice Stevens's invocation of Ohralik on the ground that it was not meant to extend beyond the attorney-client relationship. Justice Thomas recommended that the Court revisit and overrule its previous holding that TSSAA is a state actor.