This past September, in the case of Doe v. Silsbee, the U.S. Court of Appeals for the Fifth Circuit ruled against a high-school cheerleader who refused to cheer for a basketball player whom she alleged had sexually assaulted her. (She continued to cheer for the basketball team as a whole, but she did not cheer for the individual player when the other cheerleaders were doing so.)
No criminal case against the player was ever tried, because the grand jury did not return an indictment. The cheerleader’s civil complaint alleged, however, that the D.A. told her and her parents that there was enough evidence to go to trial, but that — because she and her alleged assailant were of different races — racial divisions in the community could mean that an indictment would not issue. Thus, if the complaint’s allegations are true, the failure to indict may not be able to be equated with a sense, on the part of the grand jury, that the player was innocent.
In a civil case, the cheerleader — who is referred to in the opinion only as “H.S.,” to protect her privacy — sued in federal court, seeking damages from the school under a federal statute. She claimed that the school and its officials had violated her constitutional rights, including her First Amendment rights.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit dismissed H.S.’s civil case based solely on the allegations of her complaint, without allowing discovery on the facts to go forward. In this column, I will argue that the panel was wrong to do so.
The Right Not to Speak
One of the most interesting aspects of First Amendment doctrine is the right not to speak. Arguably, being forced to say something with which you very deeply disagree might be even more oppressive and soul-killing than being forced to stay silent when you would like to speak out.
Several Supreme Court cases address — and vindicate — the right not to speak. One such case is West Virginia State Bd. of Educ. v. Barnette, decided in 1943. There, the Court rejected a mandatory public-school flag salute and pledge of allegiance.
Another such case is Wooley v. Maynard, decided in 1977. There, the State of New Hampshire required car owners to affix to their cars a license plate bearing the state’s motto, “Live Free or Die,” and penalized them if they obscured that motto. Refusing to allow New Hampshire to turn private property (the car) into a “mobile billboard” for the State’s message, the Court struck down the law.
Both of these cases were brought by Jehovah’s Witnesses, but neither opinion relied on a religious objection when it held in favor of the pledge objectors or the license-plate objectors. Instead, in each instance, the Court made clear that a purely secular objection would also have been sufficient, and that its ruling applied broadly.
In Barnette, the Court’s main concern was that an individual would be compelled “to utter what is not in his mind.” The Court reasoned broadly that ” If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
This broad, impassioned ruling is made even broader by the words “or other matters of opinion.” The addition of these words shows, I think, that the Court was primarily concerned with the forcing of any speech with which one disagrees, and not as much with the specific subject matter of the speech that is forced. It is the forcing that is the problem.
In Wooley, the Court reasoned similarly: “[W]here the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.” Here, too, the forcing matters — not necessarily the content of the speech at issue. The right is the right to avoid becoming a courier, not a right to avoid being a courier for particular messages.
Based on these statements by the Supreme Court, it seems logical that any U.S. court ought to take any governmental forcing of speech very seriously, no matter the context. Thus, the fact that the context of cheerleading might seem trivial to some should not play a role here.
Ignoring the Right-Not-to-Speak Cases
Let’s return, then, to the case involving the cheerleader, H.S. There, the Fifth Circuit panel only devoted five-and-a-half pages to its opinion, and only a page-and-a-half to H.S.’s core First Amendment claim: the claim that she had a First Amendment right not to engage in the symbolic speech of cheering for a player whom she alleges sexually assaulted her.
The scanty opinion signals that the panel likely thought that the appeal was meritless — hardly worth its time. But the panel might have thought differently had it taken into account all — not just some — of the relevant precedent here.
Incredibly, the Fifth Circuit panel’s decision did not mention either Barnette or Wooley — even though this case involved both the right not to speak, as both of those cases did, and the right to symbolic speech, which Barnette definitely did, and Wooley arguably did as well (if one believes that a driver speaks symbolically by displaying something on his car).
Instead, because this case involved speech in a public-school context, the court relied primarily on the Supreme Court’s 1969 decision in Tinker v. Des Moines Indep. Community Sch. Dist. , which holds that a school need not tolerate speech that would “substantially interfere with the work of the school.”
School Districts and Judges Should Remember That Other Free Speech Precedents Survive Tinker
Like many school districts and courts nowadays, the Fifth Circuit panel seems to have seen the language from Tinker that is quoted just above as the last word when it comes to student speech. And of course, Tinker is a key student-speech precedent. But two points should be kept in mind about Tinker:
First, the Tinker students won their case, even though the armbands they wore to protest the Vietnam War were highly controversial. Thus, although Tinker is often taken to be a license for schools to clamp down on any potentially-disruptive speech, it’s important to recall that Tinker itself involved potentially-disruptive speech on a topic that was tearing the nation apart, and yet, the Court still let that speech thrive.
Second, students in school can still invoke the same First Amendment precedents that adults can, as long as to do so is consistent with Tinker. So while Tinker innovated the “substantial interference” language, it did not, by doing so, wipe out every First Amendment precedent –including Barnette and Wooley — that came before or after, by creating some kind of special constitutional-law preserve for public-school cases alone. Precedents are relevant for their reasoning, not just their setting.
In sum, I think the panel erred by focusing almost exclusively on Tinker. I also believe that the panel’s application of Tinker was in error.
In This Case, Tinker Seems to Have Been Misapplied
The Fifth Circuit panel claimed that H.S.’s refusal to cheer for the player in question met Tinker ‘s “substantial interference” standard “because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”
In my view, this argument starts at the wrong place. The status quo at the beginning of the school year had apparently been that H.S. was a cheerleader, a position extending throughout the school year — and a position that she undertook voluntarily, then. At that time, she presumably did her job and cheered for every player.
But things changed — leading her to stop cheering for one player in February of that school year. She says that was because she was assaulted by that player, and although the grand jury did not indict, it’s possible that she might — if her civil case were to be allowed to proceed to fact discovery and/or trial — be able to prove that she indeed was assaulted.
Thus, if we are to believe H.S. — and all her allegations are supposed to be taken as true at this stage of the case — she did not “voluntarily” put herself in her current position. That position, she alleges, is not just the position of being asked to cheerlead; it is also the position of being asked to cheerlead for someone she says assaulted her.
In accusing H.S. of failing to fulfill an obligation that she took on “voluntarily,” the school district makes it sound as if H.S.’s situation were no different than that of a lazy cheerleader who just didn’t feel like cheering any more — someone who took on an obligation and then ignored it. Of course, the real situation, according to H.S.’s complaint, is a far cry from that.
Ideally, a compromise might have reflected this more complicated situation. But ironically, the only apparent compromise here is the one H.S. apparently reached on her own: Cheer for the team, but not the player. And that was not good enough for the school.
The Right Not to Speak Should Have Played a Major Role Here
The three-judge panel also asserted, as an alternate basis for its decision, that the high school “had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.” But here, the panel shows that it does not understand the right not to speak.
Of course, H.S. did not have a right to scream out anything she wanted during the basketball games at which she cheered. That would have been genuinely disruptive, and if the school had let that kind of screaming go on, then it would indeed have been promoting H.S.’s message — something it was not obligated to do.
But all H.S. did was stay silent. And, when the government respects the right not to speak, that does not mean it is being wrongly forced to “promote” whatever message might be inferred by observers from the silence.
Silence is ambiguous. Allowing silence is not the same as promoting whatever message the silence is seen as sending. It is simply protecting a constitutional right — and declining to force a person to “utter what is not in his mind.” The Fifth Circuit panel should have recognized this, and taken H.S.’s right not to speak seriously.
JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.
This column originally appeared on Findlaw’s Writ.