U.S. Supreme Court

Concurrence Limits Reach of Speech Restriction

A concurring opinion in a Supreme Court decision issued yesterday appears designed to make sure liberals on the court are not able to cite the case to “expand the rationale for government restrictions on speech.”

The court upheld an athletic association rule barring high school coaches from recruiting athletes. The rule did not infringe the free speech rights of a coach who sent a letter to students, the justices held in a 9-0 opinion. Tennessee Secondary School Athletic Association v. Brentwood Academy, No. 06–427 (PDF).

The decision emphasized that the high school had voluntarily joined the athletic association and said it should be bound by its rules.

A little-noted concurring opinion by Justice Anthony M. Kennedy said it would be ill-advised “to allow free-standing state regulation of speech by coaches,” Tony Mauro writes for the First Amendment Center. Three justices joined Kennedy’s concurrence, and another justice separately indicated his agreement on that point, turning the concurrence into a majority on the particular issue, Mauro says.

The concurring faction did not agree with Justice John Paul Stevens, who wrote the majority opinion, when he said precedent that punished a lawyer for in-person client solicitation could apply to the high school’s recruitment of students.

The Kennedy faction disagreed with that rationale, saying it could be used to restrict the high school’s speech even if it had not voluntarily joined the association.

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