Free speech, and cheering for one’s rapist

Earlier this week, the Supreme Court declined to review the case of a recent Texas high school student who was kicked off her school’s cheerleading squad after she refused to chant the name of a basketball player who had allegedly raped her. The Fifth Circuit Court of Appeals, one of the most conservative courts in the country, ruled last November that the victim — who is known only as H.S. — had no right to refuse to applaud her attacker because as a cheerleader in uniform, she was an agent of the school. To add insult to injury, the Fifth Circuit dismissed her case as “frivolous” and sanctioned the girl, forcing her family to pay the school district’s $45,000 legal fees.

The Fifth Circuit explains:

As a cheerleader, HS served as a mouthpiece through which [the school district] could disseminate speech – namely, support for its athletic teams…This act constituted substantial interference with the work of the school because, as a cheerleader, HS was at the basketball game for the purpose of cheering, a position she undertook voluntarily.

But as Think Progress notes: “It’s unclear to many court watchers how H.S.’s silence was disruptive, or how the school’s right to “disseminate speech” through cheerleading outweighed the needs of a sexual assault victim.”

Appalling. And some interesting material here for those who work on silencing. In this case, what’s at issue is the right to *be* silent, which is being denied. Astounding that it turns out to be the school’s free speech supposedly at issue.

Thanks, KI!

For the full story, see here.

5 thoughts on “Free speech, and cheering for one’s rapist

  1. I find the implication that a collective agent’s basic liberties (the school district’s speech) take priority over an individual’s basic liberties (the young woman) especially disturbing. Even if it’s right that this woman is a mouthpiece through which they can disseminate speech, she’s not *just* their mouthpiece.

  2. That’s what I thought, Dan. One person’s negative rights trump over another’s freedoms in the US. What about the girl’s right to not be assaulted by a classmate?

    She’s not interfering with another’s right to free speech by staying silent during their demonstration, just as I’m not interfering with Teabaggers’ rights by avoiding them or dissing them on the ‘net.

    By their argument, the boy is a product that the school is marketing, and the girl is an ad rep. She lost her job as ad rep for refusing to market their product. Are corporations allowed to fire employees who, say, refuse to market a vehicle that failed a crash test? I believe it’s the corporation’s responsibility to recall the harmful product, just as it’s the school’s responsibility to do something about the rapist.

    The boy raped her and the school robbed her. What the hell kind of justice is that?

  3. It was remarkably insensitive of the school to expect the cheerleader to act otherwise. I wonder what alternatives, if any, they explored to avoid this situation. And of course, the idea of the basketball player assaulting the cheerleader in the first place is appalling.

    I think the judicial decision was pretty defensible on the legal merits, though, and I don’t see much point in attacking the panel that reviewed the claims.

    Just to provide a bit more context, H.S. (the cheerleader) argued the following claims on appeal:

    First, she claimed that the District Attorney in the alleged rapist’s case deprived H.S. of a Fourteenth Amendment right to freedom from bodily injury and stigmatization because he defamed her at a press conference and illegally revealed details of the indictment hearing. The Fifth Circuit found that this allegation did not state a claim for violation of these particular freedoms.

    Second, she claimed that the school district deprived her of a Fourteenth Amendment property interest in her position on the cheer squad, when they removed her from it. Here the Fifth Circuit ruled that students do not have a constitutional property interest in their participation in extracurricular activities, and that under the terms of H.S.’s cheerleading contract, her failure to cheer constituted valid contractual grounds for her removal from the squad.

    Third, H.S. claimed that the school defendants violated her right to equal protection in that she was treated differently because she is female. However, she did not make any showing of a discriminatory intent or purpose, so the Fifth Circuit held that this argument failed.

    Fourth, H.S. alleged that the District Attorney deprived her of her First Amendment free speech right by retaliating against her for filing sexual assault charges against the players. However, the Fifth Circuit said she made no showing that any alleged retaliatory acts related to her accusations against the players.

    Finally, H.S. claimed that the school defendants violated her First Amendment right to free speech because her decision not to cheer constituted protected speech inasmuch as it was a symbolic expression of her disapproval of the player’s behavior. Although this was merely the last of several claims, it has attracted the most attention. For some reason, ThinkProgress edited the relevant judicial language here in a way I find a bit misleading, so I’ll reproduce it here (brackets mine): “In her capacity as cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech – namely, support for its athletic teams. Insofar as the First Amendment does not require schools to promote particular student speech, [the school district] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the [away] basketball game for the purpose of cheering, a position she undertook voluntarily.”

    Prof. Volokh has an overview of the facts and the law (plus a link to the actual appellate opinion) here:

    It occurs to me that H.S. (or rather her lawyers) could have raised other claims here, but the ones she did raise, including her First Amendment claim, strike me as weak ones that also appear not to have been well argued.

    It is worth remembering that the school district wasn’t suing her for violating its First Amendment rights. Rather, the relief requested by H.S. would, if granted, have arguably infringed the school district’s First Amendment rights. And this was simply in addition to the more fundamental holding that the school had no legal obligation to do what H.S. was arguing it had to do.

    A sound and earned legal victory for the school district, I think, but a moral defeat.

  4. Thanks for the fuller information, Nemo. The ruling does seem more reasonable, even if still appalling. And you’re right– the editing is misleading.

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