Amicus Curiae Brief — TENN. SEC. SCHOOL ATHLETIC v. Brentwood Acad.

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No. 06-427

In the Supreme Court of the Cnited States

TENNESSEE SECONDARY SCHOOL ATHLETIC

ASSOCIATION, PETITIONER

v.

BRENTWOOD ACADEMY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PauL D. CLEMENT

Solicitor General

Conusel of Record

PETER D. KEISLER

Assistant Attorney Geuveral

GREGORY G. GARRE

Deputy Solicitor Geacral

DAN HIMMELFARB

Assistant to the Solicitor

Groneral

MARK B.STERN

ISAAC J. LIpsky

Attorneys

Departine wlot dustice

Washington, DC. 20580-0001

(2012) o i ; SS5 ‘

QUESTION PRESENTED

The United States will address the following question:

To what extent does the First Amendment limit the

government's ability to place restrictions on the speech of

individuals or entities that voluntarily participate in a

program administered by the government or enter into a

contractual relationship with the government?

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TABLE OF CONTENTS

Page

Interest of the United States ............... cc cee eee ees 1

SEE cc dc edcenkdded dees hseeneaseeaadaseeeseneues 2

ED oo ca cescueccccencecenssdescnndesens 7

Argument:

The court of appeals misconstrued and misapplied the

First Amendment principles governing state action in

EE 9. dkWendodocasvacadcteddandcasacéedscenes 9

A. TSSAA’s recruiting rule should have been

reviewed and upheld under the deferential

standard applicable to program participants or

IE 64.0 6 060k cha kindevddcnessdecdncéceuss 10

1. Brentwood is a voluntary participant in a P

program administered by TSSAA .............. 1

2. Brentwood has a contractual relationship with

EE 446405 bra ee nUheceneanunanwiescentaeun 19

B. The court of appeals also misapplied the

“intermediate scrutiny” standard ................. 25

RED cs ccucccedcukektens cee seeuces anne nmaewas 30

TABLE OF AUTHORITIES

Cases:

Board of County Comm’rs v. Umbehr, 518 U.S. 668

PERT PTT TTT TT TT Tr er re Tere passim

Board of Educ. v. Pico, 457 U.S. 858 (1982)... eee 10

Brentwood Acad. v. TSSAA:

Se a EE i vatdudeustedcénusees 2, 3, 4, 13, 19

RE I ha i oS ad ee ek oe roe 4

180 F.3d 758 (6th Cir. 1999), cert. granted, 528 U.S.

ee oe dlisted seta ee Oe 4

IV

Cases—Continued: Page

13 F. Supp. 2d 670 (M.D. Tenn. 1998) ............. 3, 4

Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886

DE {cqvcc cuuekseetensesdbutiscdaneepernneden’s 10

Christianson v. Colt Indus. Senine Corp., 486 U.S.

ED ances bwGdeedtunkeeieueeets inedanensee 12

City Council v. Taxpayers for Vincent, 466 U.S. 789

Dy gadetweuecbaceuaatenaveduedenses seen &, 26, 29

City of San Diego v. Roe, 543 U.S. 77 (2004) ........ 22, 24

Clark v. Commurity for Creative Non-Violence, 468

EE did cnn peneeuagnceavessewetasnsten 29

Connick v. Myers, 461 U.S. 138 (1983) ............. 23, 24

Cornelius v. NAACP Legal Def. & Educ. Fund, Tnc.,

SE CEE Shncensvcascceuusues 2, 7, 13, 14, 19

Edenfield v. Fane, 507 U.S. 761 (19938)... 22... eee. 28

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ... 28

Garcetti v. Ceballos, 126 8. Ct. 1951 (2006) ....... 2, 21, 24

Greer v. Spock, 424 U.S. 828 (1976) ..............068- 14

Grove City Coll. v. Bell, 465 U.S. 555 (1984) ......... 2,15

Heffron v. International Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640 (1981) ...... 9, 26, 29

Hill v. Colorado, 530 U.S. 703 (2000) ................. 17

International Soc’y for Krishna Consciousness, Ine.

a I nn ad cu cduuésesostesess 10

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) 2... 18

Los Angeles Police Dept v. United Reporting Publ’g

en ee tice enone bensess 17

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

tit eed eee tethers ee wenenedakeanee 29

NEA v. Finley, 524 U.S. 569 (1998) o.oo 11,15, 17

Cases—Continued: Page

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) ... 28

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

GP Te. SE GD 0 06 00 000 060nsbeseeeseusueeee 13

PGA Tour, Inc. v. Martin, 532 U.S>661 (2001) ........ 16

Pickering v. Board of Educ., 391 U.S. 563

GREED <cdeG cine ddeduescesuaeeaeeee 5, 8, 19, 20, 21

Regan v. Taxation with Representation, 461 U.S. 540

GREED Tierecdvincccdse teseewsedananee 15, 17

Rosenberger v. Rector & Visitors of Univ. of Va., 515

SE 0 | BOT err ee 18

Rottmann v. Pennsylvania Interscholastic Athletic

Ass’n, 349 F. Supp. 2d 922 (W.D. Pa.

GD -s cc vanccencnductvusnssananenenene 20, 23, 24, 25

Rumsfeld v. FAIR, 1268. Ct. 1297 (2006) ......5.... 2,15

Rust v. Sullivan, 500 U.S. 173 (1991) ..... 2, 5, 7, 14, 15, 17

Snepp v. United States, 444 U.S. 507 (1980) ...... 2,11, 21

Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) ..... 17

Turner Broad. Sys., Ine. v. FCC, 512 U.S. 622 (1994) .... 4

l/nited States v. American Library Ass’n, 539 US.

SPREE 66 vedvintevescesesenian nee 15, 18

United States v. Edge Broad. Co., 509 U.S. 418

GUE acc ceccunneeeeenavededsschenseeel 9, 27, 28

United States v. Kokinda, 497 U.S. 720 (1990) ...... 10, 14

United States v. National Treasury Employees

Union, 613 US. 454 (19BG) ow ccc cccccccccccs 11, 25

Ward v. Rock Against Racism, 491 U.S. 781

URED vevnedeenéesedteaneesdsesepeieneen &, 26, 28

Waters v. Churchill, 511 US. 661 1994) 2... 11, 12, 20, 22

Constitution:

U.S. Const. Amend. I

Vi

In the Supreme Court of the Gnited States

No. 06-427

TENNESSEE SECONDARY SCHOOL ATHLETIC

ASSOCIATION, PETITIONER

Uv.

BRENTWOOD ACADEMY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the extent to which the First Amendment

limits the government’s ability to place restrictions on the speech

of individuals or entities that voluntarily participate in a program

administered by the government or enter into a contractual rela-

tionship with the government. The federal government routinely

imposes restrictions on speech in those and similar contexts (for

example, when it acts as property owner, educator, employer, or

funder). When it does so, the government acts in a capacity

other than its sovereign capacity with respect to the public at

large and, as a result, a different and more deferential First

Amendment inquiry governs. The First Amendment analysis

employed by the court of appeals in this case overlooks that dis-

tinction and thus may affect the federal government’s ability to

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2

take permissible action in a variety of contexts. The United

States therefore has a significarit interest in this case.

The United States has participated as a party or amicus cu-

riae in numerous other cases involving the application of the

First Amendment when entities or individuals participate in a

government program, or enter into a contractual relationship,

that places restrictions on their speech, including cases ad-

dressed by the court of appeals and relied upon by petitioner

here. See, e.g., Garcetti v. Ceballos, 126 S. Ct. 1951 (2006);

Rumsfeld v. FAIR, 126 8. Ct. 1297 (2006); Board of County

Comm'rs v. Umbehr, 518 U.S. 668 (1996); Rust v. Sullivan, 500

U.S. 173 (1991); Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788 (1985); Grove City Coll. v. Bell, 465 U.S. 555

(1984); Snepp v. United States, 444 U.S. 507 (1980) (per curiam).

The United States participated as amicus curiae at an earlier

stage of this case on the state-action question.

STATEMENT

1. Petitioner Tennessee Secondary School Athletic Asso-

ciation (TSSAA) is a non-profit corporation that regulates

interscholastic athletic competition among high schools in

Tennessee. It is made up of 55 private schools, including re-

spondent Brentwood Academy (Brentwood), and 290 public

schools. TSSAA is governed by a legislative council, which

has authority to enact regulations, and the board of control,

which has authority to enforce them. This case involves one

such regulation, the so-called “recruiting rule.” The rule

prohibits TSSAA members from using “undue influence

* * © to secure or to retain a student for athletic purposes,”

and a non-binding interpretive commentary to the rule pro-

hibits a coach from contacting a student or his or her parents

before the student has enrolled in the school. Brentwood

Acad. vy. TSSAA, 531 U.S. 288, 291-293 (2001) (Brentwood 1);

Pet. App. 79a-Sla; J.A. 154-159, 181-185, 274.

3

In the Spring of 1997, Brentwood’s athletic director and

football coach, Carlton Flatt, sent a letter to the families of

eighth-grade boys who had signed enrollment contracts with

Brentwood, but had not yet enrolled in the school, inviting the

boys to participate in spring football practice. In follow-up

telephone calls to the families, Flatt clarified that attendance

at the practices was not mandatory. TSSAA’s executive direc-

tor, Ronnie Carter, notified Brentwood that those actions

violated the recruiting rule and that certain other actions by

the school, which are not at issue here, also violated TSSAA

rules. Brentwood requested and received a hearing before

Carter and members of the board of control, and then ap-

pealed to the full board. The challenges were unsuccessful,

however, and the board of control penalized Brentwood for its

rules violations by placing Brentwood’s athletic program on

probation for four years, declaring its football and boys’ bas-

ketball teams ineligible for the playoffs for two years, and

imposing a fine of $3000. Brentwood 1, 531 U.S. at 293; Pet.

App. 83a-86a & n.1; J.A. 119, 238-271, 275-276.

Brentwood then sued TSSAA and Carter in federal court.

It alleged that, in enforcing its rules against Brentwood,

TSSAA violated the First Amendment and other provisions of

federal and state law. Brentwood 1, 531 U.S. at 293; Pet. App.

S6a.

2. The district court granted partial summary judgment

for Brentwood. Brentwood Acad. v. TSSAA, 13 F. Supp. 2d

670 (M.D. Tenn. 1998). It held that TSSAA is a state actor

subject to constitutional limitations, 7d. at 679-685, and that

TSSAA’s recruiting rule violates the First Amendment, both

on its face and as applied, id. at 686-694. In finding a First

Amendment violation, the court reasoned that the recruiting

rule is a “content-based” regulation subject to the “most ex-

acting scrutiny” and that TSSAA could not show that the rule

serves a “compelling governmental interest” and is the “least

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4

restrictive means” of furthering it. /d. at 687-691 (quoting

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)).

The court of appeals reversed, holding that TSSAA is not a

state actor. Brentwood Acad. v. TSSAA, 180 F.3d 758 (6th

Cir. 1999). This Court granted certiorari, 528 U.S. 1153

(2000), and reversed the decision of the court of appeals,

Brentwood I. The Court held that “(TSSAA’s] regulatory

activity may and should be treated as state action owing to the

pervasive entwinement of state school officials in the struc-

ture of the association.” 531 U.S. at 291.

On remand from this Court, the court of appeals again

reversed the partial summary judgment for Brentwood, this

time holding that the district court applied the wrong stan-

dard in finding a violation of the First Amendment. Pet. App.

la-24a. The court of appeals held that the recruiting rule is

a “content-neutral regulation” that restricts the “time, place,

and manner of speech,” and is therefore subject to “interme-

diate scrutiny.” Jd. at 14a-15a. Under that standard, the

court explained, TSSAA must show that the rule promotes

“substantial governmental interests” and is “narrowly tai-

lored” to serve them. /d. at 21. The court of appeals re-

manded the case to the district court for a determination of

whether those showings could be made. /d. at 23a. This

Court denied certiorari. 535 U.S. 971 (2002).

3. On remand from the court of appeals, the district court

held a bench trial, at the conclusion of which it found that the

recruiting rule, as applied to Brentwood, violated the First

Amendment. Pet. App. 27a-55a. The court found that the

rule furthered two substantial governmental interests: keep-

_ing high school athletics subordinate to academics and pro-

tecting student athletes from exploitation. /d. at 48a-49a.

The court held, however, that the application of the rule to

Brentwood was not narrowly tailored to further those inter-

ests, because, in the court’s view, Flatt’s letter and follow-up

5

phone calls did not elevate athletics over academics or exploit

students or their parents. Jd. at 49a-55a.'

4. On the parties’ cross-appeals, a divided court of ap-

peals affirmed in relevant part. Pet. App. 78a-153a.

a. As an initial matter, the majority rejected TSSAA’s

contention that the district court should have reviewed the

challenged actions more deferentially because TSSAA acts in

a contractual rather than sovereign capacity with respect to

Brentwood and other member schools. Pet. App. 88a-96a.

The majority reasoned that TSSAA’s proposed approach was

inconsistent with the analytical framework described in the

court of appeals’ opinion on remand from this Court, id. at

88a-91la, and that, in any event, the cases on which TSSAA

relied involved situations in which (unlike in this case) the

restriction on speech was imposed upon a government em-

ployee, an independent contractor, or a recipient of public

funds, id. at 91a-95a (discussing Pickering v. Board of Educ.,

391 U.S. 563 (1968), Board of County Comm ’rs v. Umbehr, 518

U.S. 668 (1996), and Rust v. Sullivan, 500 U.S. 173 (1991)).

Applying intermediate scrutiny, the court of appeals majority

then affirmed the district court’s First Amendment holding.

Id. at 96a-107a.

TSSAA had proffered three interests as justification for

its recruiting rule: keeping high school athletics subordinate

to academics; protecting student athletes from exploitation;

and fostering a level playing field among member schools.

Pet. App. 97a. The majority held that the court of appeals had

already recognized, in its decision on remand from this Court,

that the first interest was substantial; that TSSAA had pre-

sented “voluminous evidence at trial” that the second interest

' The district court also ruled, jvter alia, that, in enforeing the recruiting

rule, TSSAA violated Brentwood's substantive due process and procedural due

process rights. Pet. App. 55a-71a.

6

was substantial; but that TSSAA had presented “no evidence”

that the third interest was substantial. /d. at 97a-100a.

Having held that only the first two proffered governmen-

tal interests were substantial, the majority then held that the

recruiting rule, as applied to Brentwood’s specific conduct,

was not narrowly tailored to further those interests. Pet.

App. 100a-1072. The majority believed that the penalties im-

posed on Brentwood did not further the goal of protecting

student athletes from exploitation, because all the eighth

graders who were contacted by letter and telephone had

agreed to attend Brentwood and were informed that atten-

dance at spring practice was optional. /d. at 102a-103a. The

majority also believed that the penalties did not further the

goal of keeping high school athletics subordinate to academ-

ics, because, in addition to the information about spring foot-

ball practice, Brentwood had provided incoming students with

a variety of information about academics and other activities.

Id. at 103a-106a."

b. Judge Rogers dissented in relevant part. Pet. App.

13la-147a. In his view, Brentwood waived its right to engage

in the speech at issue in exchange for membership in TSSAA

and the waiver was not an “unconstitutional condition” of

meinbership, because it was related to Brentwood’s participa-

tion in the athletic association and did not extend to speech on

a matter of public concern. /d. at 133a-139a. That theory had

not been addressed in the court of appeals’ opinion on remand

from this Court and thus, the dissent believed, it was not fore-

closed by the earlier opinion. Jd. at 139a-140a. Judge Rogers

also believed that the recruiting rule was narrowly tailored to

further substantial governmental interests and that there was

therefore no First Amendment violation even under the stan-

~ The court of appeals majority also affirmed the district court's procedural

due process holding, but it reversed the district court's substantive due process

holding. Pet. App. 108a 120a.

7

dard applied by the court of appeals majority. /d. at 140a-

147a. In the dissent’s view, “TSSAA is not required to dem-

onstrate that each time it enforces the anti-recruiting rule| ]

it is stamping out the exploitation of student athletes or the

bending of academics to the will of athletics”; it is sufficient

that, “in the aggregate,” the conduct prohibited by the rule

has “the potential” to have such an effect. /d. at 144a.

SUMMARY OF ARGUMENT

The court of appeals fundamentally misconceived and mis-

applied the First Amendment principles that control when the

government restricts the speech of those who participate in a

voluntary government program or enter into a contractual

relationship with the government.

A. The court of appeals erred in applying a standard of

“intermediate scrutiny” in reviewing the restriction on speech

at issue here. That standard applies when the government

acts in its traditional sovereign capacity, regulating the

speech of the citizenry at large. Because TSSAA does not act

in that capacity, Brentwood’s challenge to the recruiting rule

should have been reviewed under the substantially more def-

erential standard applicable when the government acts with

respect to those who choose to participate in government pro-

grams or to contract with the government. When reviewed in

that light, the restriction at issue is plainly constitutional.

The schools that have joined TSSAA have done so volun-

tarily, to obtain the benefits that membership provides, in-

cluding access to athletic leagues. Under this Court's deci-

sions, TSSAA is permitted to place restrictions on the speech

of program participants, as long as the restrictions are rea-

sonable in light of the program's purposes. See, ¢.g., Rust v.

Sullivan, 500 US. 1735 (1991): Cornelins v. NAACP Legal Det.

& Hduc. Fund, lune. 473 U.S. 788 (1985). The recruiting rule

casily satisfies that standard. Prohibiting “undue influence”

8

in recruiting, including a coach’s contact with students not

enrolled at the school, furthers TSSAA’s legitimate goals of

keeping athletics subordinate to academics, preventing the

exploitation of student athletes, and fostering a level playing

field among member schools.

If Brentwood’s challenge to the recruiting rule is not re-

viewed under a reasonableness standard, it should at most be

reviewed using the balancing test of Pickering v. Board of

Education, 391 U.S. 563 (1968). That test applies when the

government restricts the speech of an independent contrac-

tor. Board of County Comm’rs v. Umbehr, 518 U.S. 668, 676

(1996). Because the relationship between TSSAA and its

member schools is likewise contractual, the Pickering test

represents the most demanding standard that could be ratio-

nally applied in this context. Under that test, the interests of

the contractor “as a citizen, in commenting upon matters of

public concern,” are balanced against the interests of the

State “in promoting the efficiency of the public services it

performs.” Umbehr, 518 U.S. at 676 (quoting Pickering, 391

U.S. at 568). Brentwood cannot establish a First Amendment

violation under that standard, because its recruiting does not

involve speech by a citizen on a matter of public concern and

because, even if it did, Brentwood’s interest in recruiting

players for its teams would be outweighed by the TSSAA in-

terests described above.

B. Not only did the court of appeals err in adopting a

standard of “intermediate scrutiny,” but it also misapplied

that standard in two different ways. First, the court erred in

requiring record “evidence” to establish that TSSAA’s inter-

est in competitive equity is “substantial.” This Court's deci-

sions make clear that the substantiality of a governmental

interest is often a matter of judgment and common sense

rather than evidence, see, e.g., Ward v. Rock Against Racism,

191 US. 781, 796 (1989); City Couneil v. Tacpayers for Vin-

9

cent, 466 U.S. 789, 808 (1984); Heffron v. International Soc’y

for Krishna Consciousness, Inc., 452 U.S. 640, 652-653 (1981),

and that is true of competitive equity in high school athletics.

Second, the court erred in concluding that Brentwood’s as-

applied challenge required TSSAA to justify its recruiting

rule, not just as an appropriate “time, place, or manner” re-

striction, but as fully serving all the rule’s purposes in this

particular application. That is not TSSAA’s burden. TSSAA

is “entitled to protect its interest[{s}” by applying the rule to

“the general cir¢umstances” of recruiting, and the rule need

not fully vindicate all its underlying purposes in every appli-

cation. United States v. Edge Broad. Co., 509 U.S. 418, 431

(1993).

ARGUMENT

THE COURT OF APPEALS MISCONSTRUED AND MIS-

APLIED THE FIRST AMENDMENT PRINCIPLES GOVERN-

ING STATE ACTION IN THIS CONTEXT

In deciding Brentwood’s First Amendment claim, the

court of appeals applied a standard of “intermediate scru-

tiny,” which is applicable to a “content-neutral” regulation of

the “time, place, or manner” of speech. Pet. App. 96a-97a.

That standard is out of place here, because it presumes that

the State is regulating the citizenry at large in its sovereign

capacity, rather than regulating those—like Brentwood—that

voluntarily participate in a government program or contract

with the government. The restriction on speech at issue is not

aimed at the public at large, but only at those schools that

choose to join TSSAA. The correct First Amendment stan-

dard is thus substantially more deferential, and it is easily

satisfied here. Even under the heightened “intermediate

scrutiny” standard applied by the court of appeals, however,

there was no violation of Brentwood’s First Amendment

rights. In holding otherwise, the court of appeals misapplied

10

the law governing conventional “time, place, or manner” re-

strictions.

A. TSSAA’s Recruiting Rule Should Have Been Reviewed

And Upheld Under The Deferential Standard Applicable

To Program Participants Or Contractors

TSSAA, a state actor by virtue of this Court’s decision in

Brentwood I, regulates athletic competition among high

schools that choose to become members of the association. To

further its goals, TSSAA has placed certain restrictions on

the speech in which member schools (and their employees and

students) may engage, including the prohibition on the use of

“undue influence” in recruiting at issue here. No precedent

of this Court directly addresses the degree of scrutiny to

which restrictions on speech should be subjected in this pre-

cise context. Established First Amendment principles point

to the conclusion, however, that the restrictions should be

reviewed deferentially.

Under this Court’s First Amendment jurisprudence, “the

role of government as sovereign is subject to more stringent

limitations than is the role of government as employer, prop-

erty owner, or educator.” Board of Educ. v. Pico, 457 US.

853, 920 (1982) (Rehnquist, J., dissenting). The same is true

when the government acts in other non-sovereign capacities,

such as contractor, funder, or program administrator.

For example, “{iJt is a long-settled principle that govern-

mental actions are subject to a lower level of First Amend-

ment scrutiny when ‘the governmental function operating

. . . [is] not the power to regulate or license, as lawmaker,

. . . but, rather, as proprietor, to manage [its] internal

operation[s].”"” United States v. Kokinda, A497 U.S. 720, 725

(1990) (plurality opinion) (quoting Cafeteria & Rest. Workers

v. McElroy, 367 U.S. 886, 896 (1961)) (brackets in original);

accord Juternational Soc’y for Krishna Consciousness, Tne.

11

v. Lee, 505 U.S. 672, 678 (1992). This Court has also recog-

nized that the government has “a freer hand in regulating the

speech of its employees than it has in regulating the speech of

the public at large.” Waters v. Churchill, 511 U.S. 661, 671

(1994) (plurality opinion); accord, e.g., Snepp v. United States,

444 U.S. 507, 509 n.3 (1980) (per curiam). Likewise, whereas

a strong justification is ordinarily required when the govern-

ment “exercise[s] sovereign power against * * * a citizen in

response to his * * * speech,” deference is due to the govern-

ment’s “reasonable assessments of its interests” when it

“exercise[s] contractual power.” Board of County Comm’rs

v. Umbehr, 518 U.S. 668, 678 (1996). Finally, the government

is permitted to “allocate * * * funding according to criteria

that would be impermissible were direct regulation of speech

or acriminal penalty at stake.” NEA v. Finley, 524 U.S. 569,

587-588 (1998).

In subjecting the speech at issue here to “intermediate

scrutiny,” the court of appeals did not quarrel with the propo-

sition that restrictions on speech are generally reviewed def-

erentially when the government does not act in a sovereign

capacity. Instead, the court concluded that TSSAA does act

in a sovereign capacity, because, as the court of appeals put it,

TSSAA functions as a “regulator.” Pet. App. 94a-95a. That

conclusion is mistaken. To the extent that TSSAA exercises

“regulatory authority” (id. at 89a), it does so only over the

schools that have voluntarily chosen to become members of

the association; it exercises no authority over the general

public. TSSAA’s “regulation” of member schools is no more

an exercise of sovereign authority than a government em-

plover’s “regulation” of its employees, and the latter, as the

court of appeals recognized (id. at 95a), is indisputably vot an

exercise of sovercign authority. See, e.g., United States v.

National Treasury Employees Union, 518 US. 454, 475

(1995) (distinguishing between government's “regulation” of

12

“expressive activity” of federal employees and government’s

“direct regulation” of “communication by private entities”);

Waters, 511 U.S. at 671 (plurality opinion) (distinguishing

between “regulating the speech of [government] employees”

and “regulating the speech of the public at large”). The court

of appeals was also mistaken in its belief that TSSAA’s re-

cruiting rule is “analogous” to “zoning ordinances and limita-

tions on noise, posting of signs, and distribution of religious

literature.” Pet. App. 89a. Those are classic sovereign func-

tions, reflecting the exercise of regulatory authority over the

citizenry at large.”

If Tennessee or one of its agencies had enacted a statute

or regulation that barred all private high schools in the State

(and their agents) from exercising “undue influence” in re-

cruiting student athletes, on pain of fine or imprisonment, the

law would be subject to the more rigorous First Amendment

scrutiny reserved for restrictions aimed at the public at

large—although even then, depending on the precise nature

of the law, it might be more properly analyzed as a regulation

of conduct that incidentally takes the form of speech (such as

a prohibition on insider trading or antitrust conspiracies) than

as a restriction on speech as such. But, in any event, that is

not the situation here. The recruiting rule applies only to

schools that choose to obtain the benefits provided by TSSAA

by becoming members of the association, and compliance with

the rule is merely a condition of membership. The-relation-

ship between Brentwood and TSSAA, therefore, is not the

relationship between citizen and sovereign. Although the

’ The court of appeals also believed that the applicability of the “intermedi-

ate scrutiny” standard was the law of the case, because that standard had been

adopted in the court of appeals’ decision on remand from this Court. Pet. App.

SSa-Y1la. But “a court of appeals’ adherence to the law of the case” obviously

“cannot insulate an issue from this Court's review.” Christianson v. Colt

ludus. Operating Corp., 486 U.S. S00, 817 (LOSS).

13

arrangement is in some respects sui generis, it is best under-

stood as the relationship between program participant and

program administrator or between parties to a contract. Un-

der either view, the restrictions that TSSAA has placed on the

speech of member schools must be reviewed deferentially, and

the restriction at issue here does not offend the First Amend-

ment.

I. Brentwood is a voluntary participant in a program

administered by TSSAA

a. TSSAA administers a program in which member

schools voluntarily participate, so as to obtain the benefits

provided by the program, including access to athletic leagues.

See Brentwood 1, 531 U.S. at 291; Pet. App. 79a. This Court’s

cases teach that, unlike laws that regulate the public at large,

rules that govern a voluntary program that provides partici-

pants certain advantages subject to certain conditions may

limit the speech of participants, as long as the rules are rea-

sonable in light of the program’s purposes.

In Cornelius v. NAACP Legal Defense & Educational

Fund, Inc., 473 U.S. 788 (1985), for example, the Court held

that the government did not violate the First Amendment by

excluding legal-defense and political-advocacy organizations

from participation in the Combined Federal Campaign (CFC),

a charity drive directed at federal employees. The Court rea-

soned that the CFC was a “nonpublic forum,” 7d. at 806; that,

under this Court’s decisions, control over access to a

nonpublic forum may be based on subject matter and speaker

identity as long as the distinctions drawn are “reasonable in

light of the purpose served by the forum” (and viewpoint-neu-

tral), ‘bid. (citing Perry Educ. Assn v. Perry Local Educa-

tors’ Ass’n, 460 U.S. 37, 49 (1983)); and that it was reasonable

for the government to exclude the speakers in question, be-

cause they would “disrupt” the fund-raising program and

14

“hinder its effectiveness for its intended purpose,” id. at 811.

Under the Court’s “forum analysis,” id. at 800, the program

at issue in Cornelius was deemed property that was not a

public forum and the government was deemed to be acting,

not as sovereign, regulating the speech of the citizenry, but

simply as the owner of the property. In that circumstance,

the Court made clear, restrictions on the speech of those per-

mitted to use the property are reviewed deferentially, because

“the Government, ‘no less than a private owner of property,

has power to preserve the property under its control for the

use to which it is lawfully dedicated.’” bid. (quoting Greer v.

Spock, 424 U.S. 828, 836 (1976)).

Similarly, in Rust v. Sullivan, 500 U.S. 173 (1991), the

Court rejected a First Amendment challenge to regulations

prohibiting entities that receive Title X grants for the opera-

tion of family-planning projects from engaging in abortion

counseling. The Court held that, within “broad[] limits,”

when “the Government appropriates public funds to establish

a program,” it is “entitled to define the limits of that pro-

gram” and te prohibit certain speech “to ensure that the lim-

its of the federal program are observed.” /d. at 193-194. Dis-

tinguishing between the government’s sovereign and non-

sovereign functions, the Court explained that the case in-

volved, not “a general law singling out a disfavored group on

the basis of speech,” but rather a “refus|al] to fund activities,

including speech, which are specifically excluded from the

scope of the project funded.” Jd. at 194-195. The Court noted

that a recipient of funds “is in no way compelled to operate a

Title X project” and may “avoid the force of the regulations

* * * simply [by] declin|ing] the subsidy.” /d. at 199 n.5.

The Court also indicated that the result would have been dif-

ferent if the program had involved property “traditionally

open to the public for expressive activity” or “expressly dedi-

,

cated to speech activity,” id. at 200 (quoting Kokinda, 497

15

U.S. at 726), thereby suggesting that, as in Cornelius, the

program at issue could be viewed as a nonpublic forum.’

The program at issue here cannot be subjected to any

more rigorous scrutiny than the programs in Cornelius and

Rust. In Cornelius, charities could participate in the CFC as

long as they abided by applicable rules, including the prohibi-

ion on legal-defense and political-advocacy activities. In

Rust, entities could receive grants to operate family-planning

projects as long as they abided by applicable rules, including

the prohibition on abortion counseling. And in this case, high

schools may become members of an athletic association as

long as they abide by applicable rules, including the prohibi-

tion on the use of “undue influence” in recruiting. In those

cases, as in this one, the government provided a benefit to

voluntary participants in a government-sponsored program

and, as a condition of participation, restricted the partici-

pants’ ability to engage in speech that the government

deemed inconsistent with the program’s purposes. In those

* The principle applied in Rust has also been applied to other types of

government funding. See L’nited States v. American Library Ass'n, 589 U.S.

194, 212 (2003) (plurality opinion) (“Especially because public libraries have

traditionally excluded pornographic material from their other collections,

Congress could reasonably impose a parallel limitation on its Internet

assistance programs. As the use of filtering software helps to carry out these

programs, it is a permissible condition under Rust.”); Finley, 524 U.S. at 587-

588 (funding for the arts). And Aust itself relied on the holding of Regan v.

Taxation with Representation, 461 US. 540 (1983), that “Congress could, in the

exercise of its spending power, reasonably refuse to subsidize the lobbying

activities of tax-exempt charitable organizations by prohibiting such organiza

tions from using tax-deductible contributions to support their lobbying efforts.”

Rust, 300 US. at 197. See also Grove City Coll. v. Bell, 405 US. 555, 575 (1984)

(“Congress is free to attach reasonable and unambiguous conditions to federal

financial assistance that educational institutions are not obligated to accept.” ):

ef. Rumsfeld v. FAIR, 1268. Ct. 1207, 1307 (2006) (declining to “determine

when a condition placed on university funding goes beyond the ‘reasonable’

choice offered in Grove City”).

16

cases, the limitation on speech was reviewed, at most, for rea-

sonableness, and there is no reason to subject the state action

here to any higher standard.

Indeed, while the federal government’s interest is primar-

ily directed at ensuring that analogous government programs

that involve voluntary arrangements are not subjected to the

same level of scrutiny as direct regulations imposed by the

government in its sovereign capacity, it is not clear that the

rule at issue here merits even the kind of scrutiny employed

in Cornelius and Rust. The voluntary nature of the arrange-

ment, the.rule’s focus on limiting conduct as opposed to

speech as such, and the essentially arbitrary nature of rules

designed to preserve a level playing field all combine to make

First Amendment concerns largely misplaced. To be sure, as

a state actor, TSSAA could not impose non-germane restric-

tions on speech, but its decision to limit recruiting and restrict

a coach’s contact with students not enrolled at the school ap-

pears plainly germane and does not raise any obvious First

Amendment concern. Beyond ensuring that the rule does not

restrict non-germane speech or discriminate based on view-

point, it is hard to imagine that detailed scrutiny of recruiting

limits to level the athletic playing field is an enterprise com-

manded by the First Amendment. Cf. PGA Tour, Inc. v.

Martin, 532 U.S. 661, 700 (2001) (Sealia, J., dissenting). In all

events, the court of appeals erred in applying scrutiny sub-

stantially more rigorous than that employed in Cornelius and

Rust.

b. The court of appeals did not discuss this Court's deci-

sion in Cornelius. Nor did it consider the possibility that a

deferential standard of review was warranted because TSSAA

is a nonpublic forum (or at least analogous to one), and thus

the very opposite of a public forum, one of the legal contexts

in which the “intermediate scrutiny” standard adopted by the

court of appeals is most frequently applied (when the restric-

17

tion at issue is content-neutral), see, e.g., Thomas v. Chicago

Park Dist., 534 U.S. 316, 322-323 & n.3 (2002); Hill v. Colo-

rado, 530 U.S. 703, 719-730 (2000). The court of appeals did

consider the possibility that this Court’s decision in Rust sup-

ports a deferential standard of review. But it rejected that

possibility, believing Rust inapposite because it involved a

“funding program” and “government speech.” Pet. App. 94a.

Neither of those facts distinguishes Rust from this case.

As to the first asserted distinction: In deciding what level

of First Amendment scrutiny is appropriate, there is no basis

for distinguishing a cash “subsidy” (Pet. App. 93a) from other

optional government benefits. In its non-sovereign capacity,

the government confers a variety of benefits—not only “subsi-

dies,” but also (for example) salaries for “government employ-

ees,” “tax exemptions,” and the “use[] of public facilities.”

Umbehr, 518 U.S. at 680; accord, e.g., Finley, 524 U.S. at 586.

Indeed, the Court has suggested that any government benefit

can be viewed as a form of “subsidy.” See Rust, 500 U.S. at

200 (describing “Government-owned property” as a type of

“Government ‘subsidy’”); Regan v. Taxation with Represen-

tation, 461 U.S. 540, 544 (1983) (describing “tax exemptions

and_tax deductibility” as “a form of subsidy”); see also Los

Angeles Police Dep't v. United Reporting Publ’g Corp., 528

U.S. 32, 43 (1999) (Ginsburg, J., concurring) (describing provi-

sion of information about arrestees as “a kind of subsidy”). In

this case, the benefits include “access to TSSAA leagues and

tournaments” and “TSSAA’s enforcement of its rules against

competitors.” Pet. App. 135a (Rogers, J., dissenting). There

is no reason why an agreement to abide by the same rules,

even if they incidentally restrict speech as a condition of those

benefits, should be reviewed any less deferentially than re-

-strictions on speech as a condition of the type of subsidy at

issue in Rust.

18

As to the second asserted distinction: The contention that

this Court’s holding in Rust depended on the fact that “the

government in that case was itself engaging in speech,” Pet.

App. 94a, was rejected by a plurality of this Court in

United States v. American Library Ass'n, 539 U.S. 194, 213

n.7 (2003). The plurality characterized that assertion as a

“misread[ing| [of this Court’s| cases discussing Rust,” ibid.,

and explained that Legal Services Corp. v. Velazquez, 531 U.S.

533 (2001), the case on which the court of appeals relied here

(Pet. App. 94a), “held only” that Rust is inapplicable “when

the [government] does not itself speak or subsidize transmit-

tal of a message it favors but instead expends funds to en-

courage a diversity of views from private speakers,” Ameri-

can Library Ass’n, 539 U.S. at 213 n.7 (plurality opinion)

(quoting Velazquez, 531 U.S. at 542, in turn quoting

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

834 (1995)) (brackets in original). The program at issue here

was not established to encourage a diversity of views from

private speakers any more than the program at issue in Rust.

ce. The recruiting rule challenged by Brentwood prohibits

“(t]he use of undue influence” on a student, or on the stu-

dent’s parents or guardians, “to secure or to retain [the] stu-

dent for athletic purposes.” J.A. 181. TSSAA has identified

three reasons for the enactment of the rule: to keep high

school athletics subordinate to academics; to protect student

athletes frorn exploitation; and to foster a level playing field

among the member schools. Pet. App. 97a. In agreement

with the district court, the court of appeals held that all three

of those justifications were legitimate (and that the first two

were substantial as well as legitimate). /d. at 97a-100a. In

light of those purposes, a rule prohibiting the use of “undue

influence” in recruiting students to play on high school ath-

letic teams is self-evidently a reasonable one, even if it might

not be “the most reasonable or the only reasonable” rule.

19

Cornelius, 473 U.S. at 808. Indeed, setting reasonable param-

eters for recruiting serves many of the same purposes as set-

ting parameters for field conditions, not to mention the length

of games.

In deciding Brentwood’s First Amendment challenge un-

der a standard of “intermediate scrutiny,” the court of appeals

considered whether the justifications for the recruiting rule

were furthered by its enforcement in this particular case.

Pet. App. 102a-107a. As we explain in our discussion of the

court of appeals’ application of the intermediate-scrutiny

standard, see pp. 27-30, infra, Brentwood may be able to

bring an as-applied challenge to a broad category of conduct

covered by the recruiting rule, but it cannot challenge the rule

as applied only to itself. If that is true of the intermediate-

scrutiny standard, it is a fortiori true of the more deferential

reasonableness standard. And the recruiting rule is reason-

able as applied to the broad category of conduct at issue

here—i.e., a coach’s contact with students not yet enrolled at

the school. Pet. App. 85a; see J.A. 181-185.

2. Brentwood has a contractual relationship with

TSSAA

a. As the court of appeals recognized (Pet. App. 96a), the

relationship between TSSAA and its member schools is con-

tractual. “Any private or public secondary school may join

the TSSAA by signing a contract agreeing to comply with its

rules and decisions.” Brentwood 1,531 U.S. at 306 (Thomas,

J., dissenting). In Umbelr, supra, this Court held that, when

the government restricts the speech of an independent con-

tractor, the applicable First Amendment standard is the def-

erential balancing test of Pickering v. Board of Education,

391 U.S. 563 (1968), which governs First Amendment chal-

lenges by government employees. Under that test, which

reflects a recognition that “review of government employment —

20

decisions must rest on different principles than review of

speech restraints imposed by the government as sovereign,”

Waters, 511 U.S. at 674 (plurality opinion), “the interests of

the [employee], as a citizen, in commenting upon matters of

public concern” are balanced against “the interest of the

State, as an employer, in promoting the efficiency of the pub-

lic services it performs through its employees,” Umbehr, 518

U.S. at 676 (quoting Pickering, 391 U.S. at 568) (brackets in

original). Brentwood’s challenge to TSSAA’s recruiting rule

should not be subject to any standard more demanding than

the Pickering balancing test.

The contractual relationship between a school and an ath-

letic association is analogous to the relationship between an

employee or independent contractor and the agency for which

the employee or contractor works. Likewise, requiring a

school that wishes to be a member of an athletic association to

abide by the association’s rules, including those that restrict

speech, is analogous to requiring a person or entity that

wishes to work for a government agency to abide by the

agency’s rules, including those that restrict speech. Because

the Court has recognized the need for more deferential review

of the government’s actions in the latter context, at most a

similarly deferential standard should apply in this context (if

the reasonableness standard does not). As one court observed

in holding that the test applies in the circumstances present

here, an interscholastic athletic association “exercises no sov-

ereign power” over a member school, which has merely “a

contractual relationship” with the association; the school is

“only bound by the Anti-Recruiting Rule because [the school]

voluntarily applied for membership in the [association]”; and

the school “can free itself from the proscriptions of the Anti-

Recruiting Rule at any time by withdrawing from member-

ship.” Rottmann v. Penusylvania luterscholastic Athletic

Ass, 349 F. Supp. 2d 922, 930 (W.D. Pa. 2004).

21

The Court’s decision in Snepp, supra, underscores the

deferential standard of review that the Court has applied to

speech restrictions voluntarily accepted by those who contract

with the government. In that case, an employee of the Cen-

tral Intelligence Agency (CIA) “voluntarily signed [an] agree-

ment that expressly obligated him to submit any proposed

publication for prior review.” 444 U.S. at 509 n.3. The Court

rejected the employee’s First Amendment claim that his

agreement was “unenforceable as a prior restraint on pro-

tected speech.” /bid. It reasoned that the agreement was an

“entirely appropriate” and “reasonable means” for protecting

intelligence sources and methods and thus furthering the

CIA’s mission. /bid. (quoting court of appeals’ opinion).

b. The court of appeals believed that Umbehr does not

support application of a deferential standard of review, both

because this case does not involve independent contractors

(Pet. App. 91a-92a) and because, in the court of appeals’ view,

the standard adopted in Umbehr is in any event consistent

with “intermediate scrutiny” (id. at 93a). The second asserted

reason is mistaken, and the first, although correct, provides

no basis for rejecting the Pickering balancing test.

As to the court of appeals’ second reason: The

intermediate-scrutiny standard, which requires, among other

things, that the challenged regulation be “narrowly tailored”

to further “substantial governmental interests,” is more de-

manding than the Pickering balancing test. To begin with,

only a limited category of speech is even presumptively enti-

tled to First Amendment protection under the balancing test:

speech expressed “as a citizen,” upon “matters of publie con-

cern.” Pickering, 391 U.S. at 568. Regardless of the strength

of the government's interests in limiting it, speech enjoys no

constitutional protection under Pickeriny if it is not expressed

us a citizen, see Garcetti v. Ceballos, 126 8. Ct. 1951, 1957-

1962 (2006), or does not address a matter of public concern,

22

see, e.g., City of San Diego v. Roe, 543 U.S. 77, 82-85 (2004)

(per curiam). And even speech that satisfies those two re-

quirements can permissibly be restricted if the government’s

interests in preventing the disruption of public services out-

weigh the speaker’s interests in the speech. See, e.g., Waters,

511 U.S. at 680-681 (plurality opinion). Substantial deference,

moreover, is accorded to the government’s view of its inter-

ests. See, e.g., Umbehr, 518 U.S. at 677-678, 685. In all of

these respects, the Pickering standard, which reflects “a def-

erentially administered requirement that the government not

unreasonably terminate its commercial relationships on the

basis of speech,” id. at 684, is far less stringent than the

intermediate-scrutiny standard adopted by the court of ap-

peals. Moreover, because the recruiting rule is addressed to

the conduct and speech of coaches as coaches, not as citizens,

and is germane to the business of the athletic association and

not directed to matters of broader public concern, it easily

passes muster. See infra, pp. 23-25.

As to the court of appeals’ first reason: Although a

TSSAA member school is not the same type of contractor as

was at issue in U/mbekhr, it is a contractor nonetheless, in that

it receives a benefit from the government in exchange for

consideration. Just as an independent contractor provides

goods and services to a government agency in exchange for a

fee, a member school makes its athletic teams available to

TSSAA in exchange for access to leagues and tournaments.

Each type of contractor thus has a relationship with the gov-

ernment that is not the relationship between citizen and sov-

ereign. And that is the relevant characteristic as far as the

appropriate level of First Amendment scrutiny is concerned.

In the employee and independent-contractor contexts,

application of the Pickering balancing test is appropriate be-

cause, when the speech at issue does not address a matter of

public concern, government officials must have “wide latitude

23

in managing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment.” Connick v.

Myers, 461 U.S. 138, 146 (1983); accord Umbehr, 518 U.S. at

677-678. And even when the speech does address a matter of

public concern, an official must be able to take action when

“the functioning of his office [i]s endangered.” Connick, 461

U.S. at 153; accord Umbehr, 518 U.S. at 674. The same con-

cerns a fortiori justify application of an appropriately defer-

ential test here. “The operation of a sports league demands

speech limits that are germane to the agreed-upon venture no

less,” and likely more, “than does employment” or the rela-

tionship with independent contractors. Pet. App. 138a (Rog-

ers, J., dissenting). In particular, when a member school or

its agents “engage in inappropriate activity, such as repeated

unsportsmanlike conduct, or cheating, or recruiting,” the ath-

letic association “needs to be free to sanction the wrongdoer

in order to maintain the quality of its programs and to serve

the purposes for which it was created.” Rottmann, 349 F.

Supp. 2d at 930. If anything, therefore, the differences be-

tween an employee or independent contractor and the type of

contractor at issue here call for more deferential review in

this context. And a “proper application of the Pickering bal-

ancing test can accommodate the differences.” Umbehr, 518

U.S. at 678.

ec. For three independent reasons, Brentwood cannot

establish a violation of the First Amendment under the

Pickering test. First, the speech by Brentwood’s football

coach was expressed, not “as a citizen,” but as the coach of a

team that competes in a TSSAA league. The coach’s letters

and telephone calls to the students and their families were

thus unlike “the expressions made by the speaker in

Pickering,” for example, “whose letter to the newspaper had

no official significance and bore similarities to letters submit-

24

ted by numerous citizens every day.” Garcetti, 126 S. Ct. at

1960.

Second, even if the speech at issue can be characterized as

“citizen” speech, both the general type of speech prohibited

by the recruiting rule—the use of “undue influence” to secure

or retain a student for athletic purposes—and the particular

speech in which Brentwood engaged—a coach’s contact with

students who were not yet enrolled at the school—do not

“touch upon any matter of public concern.” Pet. App. 138a

(Rogers, J., dissenting). On the contrary, the speech, “by

definition,” addresses a matter of purely private concern: an

effort to persuade students to attend the speaker’s school and

play on his school’s athletic teams. Rottmann, 349 F. Supp.

2d at 930. The speech is thus even further removed from a

“public concern” than the speech at issue in Connick, supra,

which was held not to address any matter of public concern

even though it pertained to “the confidence and trust” that

employees of a district attorney’s office “possess{ed] in vari-

ous supervisors,” “the level of office morale,” and “the need

for a grievance committee.” 461 U.S. at 148; ef. Roe, 543 U.S.

at 84 (noting that, “even under the view expressed by the dis-

sent in Connick * * *, the speech here would not come within

the definition of a matter of public concern”) .

Third, even if the speech at issue could somehow be

thought to be speech by a citizen on a matter of public con-

cern, member schools’ interest in the speech would be

“greatly outweigh{ed]” by TSSAA’s interest in restricting it.

Rottmann, 349 F. Supp. 2d at 931. The use of “undue influ-

ence” in recruiting athletes in general, and a coach’s contact

with a student not yet enrolled in the school in particular,

have the potential to “disrupt{],” “interfere|| with,” and

“undermin{[e],” Connick, 461 U.S. at 151-152, the three core

values that TSSAA sought to further by enacting the recruit-

ing rule: keeping athletics subordinate to academics, protect-

25

ing student athletes from exploitation, and fostering a level

playing field among member schools. And TSSAA’s interest

in preventing that result is considerably stronger than Brent-

wood’s interest in “recruit|ing] standout eighth grade ath-

letes.” Rottmann, 349 F. Supp. 2d at 931.

This case differs from National Treasury Employees Un-

ion, supra, in which this Court stated that “the Government’s

burden is greater with respect to |a general] restriction on

expression than with respect to an isolated disciplinary ac-

tion,” 513 U.S. at 468, and held that the government could not

discharge that burden in seeking to justify a ban on the re-

ceipt of honoraria by federal employees. Unlike the speech

covered by the honorarium ban, most of which “dlid] not in-

volve the subject matter of Government employment,” id. at

470, and was “wholly unrelated to the workplace,” id. at 482

(O’Connor, J., concurring in the judgment in part), the speech

prohibited by the recruiting rule is directly related to inter-

scholastic athletic competition, the subject matter of the con-

tractual relationship between TSSAA and member schools.

B. The Court Of Appeals Also Misapplied The “Intermedi-

ate Scrutiny” Standard

1. In applying “intermediate scrutiny,” the court of ap-

peals held that only two of the three proffered justifications

for the recruiting rule were substantial governmental inter-

ests and that the rule, as applied to Brentwood, was not nar-

rowly tailored to further either of them. Pet. App. 96a-107a

In so holding, the court misapplied both the “substantial gov-

ernmental interest” and “narrow tailoring” elements of the

standard governing challenges to “time, place, or manner”

restrictions.

a. The court of appeals held that keeping athletics subor-

dinate to academics and protecting student athletes from ex-

ploitation are substantial governmental interests but that

26

fostering a level playing field among member schools is not.

Pet. App. 97a-100a. The basis for that holding was that

TSSAA produced no “evidence” that its interest in competi-

tive equity in interscholastic athletics is a “substantial” one.

Id. at 100a. The determination of whether a particular gov-

ernmental interest is “substantial,” however, is ordinarily a

matter of judgment and common sense rather than evidence.

For example, the court of appeals required a showing of a

“substantial governmental interest” under the “intermediate

scrutiny” standard because it believed that the recruiting rule

was “analogous” to “limitations on noise, posting of signs, and

distribution of religious literature.” /d. at 89a. Yet this Court

did not demand any evidentiary showing in concluding that

the government had a substantial interest in “protecting its

citizens from unwelcome noise,” Ward v. Rock Against Rac-

ism, 491 U.S. 781, 796 (1989) (quoting City Council v. Taxpay-

ers for Vincent, 466 U.S. 789, 806 (1984)), “eliminating visual

clutter,” Taxpayers for Vincent, 466 U.S. at 808, or “the or-

derly movement and control of [the] assembly of persons” at

the state fair at which the religious literature was distributed,

Heffron v. International Soc’y for Krishna Consciousness,

Inc., 452 U.S. 640, 650 (1981).

Nor did the court of appeals in this case rely on any record

evidence in concluding that keeping athletics subordinate to

academics is-a substantial governmental interest. Pet. App.

22a, 97a. And the only evidence on which it relied in conclud-

ing that preventing the exploitation of students is a substan-

tial interest, 7d. at 98a-99a, merely confirmed what would have

been obvious without the evidence. It is an equally “obvious

proposition,” id. at 145a n.2 (Rogers, J., dissenting), that teen-

agers who play on tcams that rarely win can easily become

demoralized and lose interest in athletics, which can be a criti-

cal part of a child’s education and development. Under these

circumstances, TSSAA’s interest in competitive equity is self-

27

evidently a substantial one, and the court of appeals erred in

requiring record evidence to prove it.

b. The basis for the court of appeals’ holding that the

recruiting rule fails the “narrow tailoring” requirement was

that enforcement of the rule in this case did not further either

of the interests that the court found to be legitimate and sub-

stantial. Pet. App. 100a-107a. Thus, with respect to TSSAA’s

interest in preventing the exploitation of student athletes, the

court reasoned that, because the students contacted by Brent-

wood’s football coach had already signed enrollment contracts

with the school and were informed that spring practice was

optional, “neither students nor parents were exploited in the-

ory or in fact.” /d. at 103a (quoting district court’s decision).

And with respect to TSSAA’s interest in keeping athletics

subordinate to academics, the court reasoned that, because

incoming students also received information from Brentwood

about academics and other activities, the coach’s letters and

telephone calls did not have any effect on “the relative stand-

ing of academics and athletics at the school.” /d. at 106a. In

finding a First Amendment violation in this case, the court

stated that “application of the recruiting rule to other schools

communicating in similar ways to students” might vot be un-

constitutional, because, for example, “it is possible that letters

and calls similar to the ones at issue here would be exploit-

ative in a different context.” /d. at 102a n.11 (emphasis

added). The court of appeals’ holding leaves no room for le-

gitimate prophylactic rules and reflects a fundamental misun-

derstanding of the “narrow tailoring” requirement in cases

presenting as-applied challenges to “time, place, or manner”

restrictions.

This Court has squarely “rejected the * * * view that

{an| ‘as applied’ challenge require[s] the State to show that

{the plaintiffs| particular conduct in fact trenched on the in-

terests that the regulation sought to protect.” l/nited States

28

v. Edge Broad. Co., 509 U.S. 418, 431 (1993). The State is

“entitled to protect its interest|s] by applying a prophylactic

rule to thie] circumstances [of the plaintiff's acts] generally”;

it is not required “to go further and to prove that the state

interests supporting the rule actually were advanced by ap-

plying the rule in [the plaintiff's] particular case.” /bid. Ac-

cordingly, while a plaintiff may be able to bring an as-applied

“time, place, or manner” challenge to a “broad category” of

conduct, he cannot challenge a regulation “as applied only to

himself or his own acts.” /bid.; see, e.g., Edenfield v. Fane,

507 U.S. 761, 763 (1993) (holding that a ban on solicitation by

certified public accountants violates the First Amendment “as

applied * * * inthe business context”).

Edge Broadcasting and Edenfield, the decisions cited

above, are both commercial-speech cases, as is Ohralik v.

Ohio State Bar Ass’n, 436 U.S. 447 (1978), another case in

which the same principle was applied, see id. at 462 (State

need not demonstrate that “evils” regulation seeks to prevent

are present in each case). As the Court observed in Edge

Broadcasting, however, “the validity of time, place, or manner

restrictions is determined under standards very similar to

those applicable in the commercial speech context.” 509 U.S.

at 430; see F'lorida Bar v. Went For It, Inc., 515 U.S. 618, 623

(1995) (“we engage in ‘intermediate’ scrutiny of restrictions

on commercial speech”). The Court therefore relied on a

“time, place, or manner” decision, Ward, supra, in holding

that the validity of a restriction on speech is not to be judged

“by the extent to which it furthers the Government’s interest

in an individual case.” Edge Broad., 509 U.S. at 430-431; see

Ward, 491 U.S. at 801 (“the validity of the regulation depends

on the relation it bears to the overall problem the government

seeks to correct, not on the extent to which it furthers the

government's interests in an individual case”).

29

Other decisions of this Court, moreover, have applied the

same principle in addressing as-applied challenges to “time,

place, or manner” restrictions. See Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 296-297 (1984) (“the

validity of this regulation need not be judged solely by refer-

ence to the demonstration at hand”); Heffron, 452 U.S. at 652

(“The justification for the Rule should not be measured by the

disorder that would result from granting an exemption solely

to [the plaintiff].”). The decision on which the court of appeals

relied (Pet. App. 107a n.15), Taxpayers for Vincent, swpra, is

not to the contrary. In rejecting an as-applied challenge to a

ban on the posting of signs on public property, this Court did

not hold that the interests supporting the ban were furthered

in that particular case; it held that “the city’s esthetic inter-

ests were * * * substantial” and that posted signs “by their

very nature, wherever located and however constructed, can

be perceived as an ‘esthetic harm.’” 466 U.S. at 807-808 (quot-

ing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510

(1981) (plurality opinion)).

The dissenting judge in the court of appeals was therefore

correct when he said that “TSSAA is not required to demon-

strate that each time it enforces the anti-recruiting rule| | it is

stamping out the exploitation of student athletes or the bend-

ing of academics to the will of athletics for the anti-recruiting

rule[] to be valid.” Pet. App. 144a (opinion of Rogers, J.). It

is sufficient that the conduct prohibited by the rule, “in the

aggregate,” leads to “the exploitation of student athletes or

the subordination of academics to athletics.” /bid. By holding

that the purposes of the recruiting rule must be furthered in

every case and that they were not furthered in this one, the

court of appeals not only disregarded this Court’s precedents

on as-applied challenges to “time, place, or manner” restric-

tions; it effectively converted the recruiting rule into a stan-

dard (designed to avoid the exploitation of student athletes or

" 30

the subordination of academics to athletics) and found that

the standard was not violated in this case. The First Amend-

ment does not grant courts such authority.

2. Ifthe court of appeals had properly applied intermedi-

ate scrutiny, the recruiting rule would have satisfied that

standard. Of course, the court of appeals’ more fundamental

mistake was to apply intermediate scrutiny, as opposed to

substantially more deferential review, in the first place. In

either event, the decision below was erroneous and should be

reversed.

CONCLUSION

The judgment of the court of appeals as to the First

Amendment claim should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Solreitor General

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRF.

Deputy Solicitor General

DAN HIMMELFARB

Assistant to the Solicitor

General

MARK B. STERN

ISAAC J. LIDSKY

Attorneys

FEBRUARY 2007