FIRE Statement on College Student-Athletes’ Free Speech Rights

General Statement

Student-athletes are students first.[1] Students at all public universities have free speech rights, and most private universities guarantee free speech to their students as well. Participation in college athletics likely entails accepting certain limitations on expressive activity that are reasonably necessary for the regular functioning of athletic programs. (For example, student-athletes under their coaches’ supervision during practice cannot expect to enjoy the robust expressive rights they possess on the quad.) However, public and private universities should honor and protect the expressive rights of their student-athletes to the fullest extent possible.[2] This principle is consistent with the college’s obligation to protect freedom of speech, and allows student-athletes to express their unique perspectives on issues facing their campus and our society. All rules regarding expression should be made available to the student-athletes prior to joining their respective athletic programs.

Principles

  1. Punishment. ​Although coaches have the authority to discipline their athletes, colleges may not punish student-athletes academically or in a way that affects their status as students for violating rules that only apply to them as athletes.
    1. This does not affect the college’s ability to revoke a student-athlete’s athletic scholarship.
  2. Compelled Political and Religious Speech.​ Colleges may not compel student-athletes to engage in political or religious speech. This includes content- and viewpoint-based mandates to engage in political or religious expression. For example, colleges may not punish student-athletes for refusing to stand during the national anthem.[3]
    1. Religiously-affiliated schools have more leeway to regulate religious expression.[4]
  3. Whistleblowers.​ Student-athletes may not be punished, either as students or athletes, for
    speech that exposes unauthorized or illegal activity within their athletic program.[5]

    1. This principle stands regardless of the anticipated or actual disruption to the athletic program. The speech of whistleblowers could inherently be labeled as disruptive, which is why colleges should protect whistleblowers from retaliation by athletic program officials.
    2. Good faith allegations of misconduct merit protection even if they are ultimately refuted.
  4. Privacy.​ Colleges may not require or request student-athletes to disclose any username, password, or other related information in order to gain access to personal social media accounts, nor may colleges request or require student-athletes to access personal social media accounts in the presence of the institution’s employees or representatives.[6]

Notes

[1] Amateurism​, National Collegiate Athletic Association, http://www.ncaa.org/amateurism (last visited Dec. 5, 2017) (“In the collegiate model of sports, the young men and women competing on the field or court are students first, athletes second.”).

[2] Kennesaw State University took this approach by protecting its cheerleaders’ right to kneel during the national anthem at university football games. Press Release, Lawyers’ Committee for Civil Rights Under Law,​ Civil Rights Groups Secure Victory That Ensures Kennesaw State University Will Respect First Amendment Rights of Student Athletes​ (Nov. 8, 2017) available at https://lawyerscommittee.org/press-release/civil-rights-groups-secure-victory-ensures-kennesaw-state-university-will-respect-first-amendment-rights-student-athletes.

[3] See​ V.A. v. San Pasqual Valley Unified School District, Case No. 17-cv-02471-BAS-AGS (S.D. Cal., Dec. 21, 2017) (order granting preliminary injunction) (enjoining school district from enforcing policy prohibiting “peaceful political protest” including kneeling during the national anthem at school sporting events).

[4] Colleges that clearly and consistently hold a set of religious values above a commitment to freedom of speech may exercise greater control over their student-athletes’ religious expression. ​See, e.g.,​ Church Educational System Honor Code Statement, http://ucat.byu.edu/ces/honor-code.html?student=byu (last visited Dec. 7, 2017) (“As a matter of personal commitment, . . . students of Brigham Young University . . . seek to demonstrate in daily living on and off campus those moral virtues encompassed in the gospel of Jesus Christ.”).

[5] See​ Lowery v. Euverard, 497 F.3d 584, 600 (6th Cir. 2007) (recognizing that the speech of student-athlete whistleblowers may merit protection regardless of its effect on the team).

[6] Several states forbid colleges from accessing student-athlete social media accounts. David L. Hudson Jr., Site Unseen: Schools, Bosses Barred from Eyeing Students’, Workers’ Social Media​, A.B.A. J. (Nov. 2012), ​available at http://www.abajournal.com/magazine/article/site_unseen_schools_bosses_barred_from_eyeing_students_workers_social_media​ (describing Delaware’s law); Allie Grasgreen, ​Watch What You Tweet​, Inside Higher Ed (Aug. 27, 2012), https://www.insidehighered.com/news/2012/08/27/california-second-state-forbid-colleges-social-media-monitoring-athletes​ (describing California’s law).


FIRE Student-Athlete Speech Statement