Brian Craddock

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In Tennessee Secondary School Athletic Ass'n v. Brentwood Academy ("Brentwood I/,), the United States Supreme Court unanimously held that an athletic association may enforce its anti-undue-influence recruiting policy, restricting the speech of its voluntary member schools, to avoid undue influence on young student athletes during the recruitment process. In reaching its holding, the Court extended two lines of First Amendment jurisprudence. First, the Court extended the application of Ohralik v. Ohio State Bar Ass'n to a context other than attorney-client solicitation for the first time. In doing so, the Court held that the possibility of undue influence in athletic recruiting was analogous to that in attorney-client solicitation and harmful enough to justify speech restriction.' Second, the Court extended the application of the Pickering v. Board of Education balancing test beyond the context of government employment, weighing the interests of Brentwood Academy ("Brentwood") against those of the Tennessee Secondary School Athletic Association ("TSSAA"). Ultimately, the Court held that the TSSAA's interest in enforcing its rules and restricting the speech of its voluntary members outweighed Brentwood's interest in recruiting speech.

The decision in Brentwood II sets a precarious standard. The First Amendment doctrines used by the Court to support its holding were removed from their contexts and greatly extended. While the decision in Brentwood II is unanimous, the concurring Justices did not concur in the judgment because they supported the reasoning adopted by the majority. Rather, the concurring Justices in Brentwood II did so for the same reasons that they dissented in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n ("Brentwood I"), arguing that Brentwood was not entitled to First Amendment protection because TSSAA's actions were private and not state actions. Further, the Court established a nebulous practical standard for recruiting that does little to clarify the boundary between appropriate recruiting measures and inappropriate ones.