A Cheerleader and Her Free-Speech Rights, Tied Up in Court

A high school cheerleader, kicked off the squad for refusing to cheer for a player she said raped her, is fighting in court for free-speech rights she said were denied her.

The case has attracted national attention, including support for the woman from domestic-violence and First Amendment groups. The (now-former) cheerleader has appeared on CNN, and 15,000 people have an online petition asking the school district in her small town of Silsbee, Texas to apologize to her.

In the fall of 2008, the cheerleader, identified in court documents as H.S., was at a post-football game party at a friend’s home when she said three boys, including the school’s star basketball player, Rakheem Bolton, took her into a game room and sexually assaulted her. He and the others were arrested, but a grand jury declined to indict them. A year later, however, Bolton was indicted on a felony charge of sexual assault of a child, according to The Silsbee Bee. Two months ago, Bolton pleaded guilty to a misdemeanor charge of simple assault in the case, was fined $2,500 and ordered to perform 150 hours of community service and take an anger-management course.

Several months after the assault, during an away basketball game, when Bolton went to the free throw line, H.S. refused to cheer. H.S.’s attorney, Larry Watts, told Politics Daily that the cheer was “Two, four, six, eight, ten, Come on, Rakheem, put it in.”

H.S. said she had previously taken such a stand and refused to cheer for him. But this time, the principal and other school officials told her to cheer or leave. She and her parents left, and she was subsequently cut from the squad, Watts said.

In May 2009, the family sued the Silsbee school district, Richard Bain, Jr., the superintendent; Gaye Lokey, the principal; Sissy McInnis, the cheerleading team’s adviser; Bolton, the basketball player and David Sheffield, the district attorney in federal court on grounds that H.S.’s 14th Amendment rights (especially her right to equal protection) had been violated. According to an account in the Washington Post, H.S.’s lawyer also argued that the district attorney “violated the First Amendment by retaliating against H.S. for filing sexual assault charges by revealing details about the case to the public.” H.S. contended she was punished because of her “symbolic expression” not to cheer for the player.

The defendants moved to dismiss her complaint, and the judge agreed, saying H.S.’s lawyer failed to clearly state an actionable claim. The judge gave H.S. a chance to amend her complaint and refile it. She did, and the defendants again moved to dismiss. The case was indeed dismissed, and H.S. appealed to the Fifth Circuit.

On Sept. 16, a three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans upheld the dismissal, ruling that the cheerleader’s First Amendment right to free speech was not violated because in her role as a cheerleader, she “served as a mouthpiece” for the school, not herself. It further ruled that school officials “had no duty to promote (her) message by allowing her to cheer or not cheer, as she saw fit.” It also ruled that her act constituted interference “with the work of the school” because as a cheerleader, she was at the game “for the purpose of cheering, a position she undertook voluntarily.” Finally, it ruled that the cheerleader and her family must pay court costs for bringing about a frivolous suit.

Last week, H.S. filed a petition for a re-hearing en banc, requesting that all judges on the bench — not just a three-judge panel — hear the case. Watts said his client has no legal right to have the entire court hear the issue. A majority of the judges will have to vote to allow that. He said that the case is extraordinary in one regard.

“There aren’t many times you’re going to have a rape victim silenced or being censored classified as disruptive speech,” Watts told Politics Daily. “Her actions were not disruptive. The school officials were watching her and waiting. She was targeted. But because she was, we’re in this situation. The court has now used this to try muzzle the free speech of students even more.”

Symbolic speech is often described by legal scholars as purposefully and discernibly conveying a particular message or statement to those viewing it. It is distinguished from pure speech, which is spoken or written.

Would the cheerleader have had a stronger case if she held up a sign calling the basketball played a rapist?

Not necessarily, said Keith Werhan, chair of constitutional law at Tulane University in New Orleans. In recent years, the courts have restricted some speech by students, he said.

“I would say this conveying of an idea, expressing her feelings toward this person, is a First Amendment protected activity,” Werhan said. “It seems virtually cruel to me for the school to enforce this and force her off the squad. It’s an increasing lack of regard of individual rights and a broader trend in this area of jurisprudence. This case is an amazing dramatic display of that.”

Legal experts say the Fifth Circuit panel that dismissed H.S.’s appeal is one of the most conservative courts in the country. Emilio Garza and Edith Clement were once on President George W. Bush’s short list for a Supreme Court vacancy. Priscilla Owen, a former Texas Supreme Court justice, is also on the court in New Orleans. She was a Bush appointee whose confirmation was slowed by a Democratic filibuster.