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How Adam Sasser’s lawsuit reckons with free speech rights at UGA

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Hate Speech

By March 23, 2021, all defendants in former Georgia baseball player Adam Sasser’s lawsuit filed a second motion to dismiss his lawsuit.

Sasser initially filed the lawsuit against the University System of Georgia, UGA, the UGA Equal Opportunity Office, the UGA Athletic Association and other UGA institutions and officials on Sept. 29, 2020.

Defendants filed a motion to dismiss the complaint in January 2021. Sasser’s lawyer submitted an amended complaint on Feb. 18.

The litigation came nearly two years after Sasser attended the Tennessee–Georgia football game, during which he loudly and repeatedly referred to Georgia’s then backup quarterback Justin Fields as a racial slur historically used to oppress Black people, and faced punishment from the university and athletic association.

Sasser’s lawsuit alleges that by punishing him for his speech, UGA and others infringed on his constitutional rights, including the right to free speech.

Motions to dismiss Sasser's amended claim argued that Sasser’s suit contained many factual errors.

Additionally, the complaint alleges that Sasser’s speech is not entitled to First Amendment protections because the racial slur he used constitutes “fighting words.” Fighting words are defined by the Supreme Court as words that "inflict injury or tend to incite an immediate breach of the peace.”

Sasser’s amended complaint argues that his use of the slur was intended to be positive and in support of Fields.

Alex English, president of UGA’s chapter of the NAACP, said Sasser’s words, regardless of their intended use, were an emboldening reminder to the white people around him that they are still the race in power.

“You’re giving credence to white supremacy by using it [the racial slur],” English said.

In Sasser’s case, the question emerges of whether the university can overcome First Amendment protections on racial slurs and other forms of hate speech, even if they don’t rise to the level of fighting words.

Fighting words is a narrowly-defined category of speech that is not protected by the First Amendment, said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former executive director of the Student Press Law Center.

LoMonte said it's difficult to say that any word, even a racial epithet, is always a fighting word.

Sasser’s case will likely move forward in the coming year. According to a judicial order from Chief Judge Thomas Thrash, there will be no criminal or civil trials in the Northern District of Georgia until May 2.

Racist language at UGA didn’t begin or end with Sasser, but at the close of his court case, the judiciary may decide if it can continue.

“It’s not even just about the N-word, it’s about this history of the institution and what the significance of saying it is, right here,” English said.

Sasser’s lawyer, Dorothy Spinelli, declined The Red & Black’s two requests for comment. Sasser did not respond to The Red & Black’s two requests for comment.

Sasser’s case

Sasser’s lawsuit alleges that UGA, UGAAA and others punished him for exercising his right to speak freely and, in this instance, disagreeably. Per his complaint, UGAAA, which is a private and separate entity from UGA, removed Sasser from the baseball team in response to his actions.

UGA’s EOO barred Sasser from attending his classes in person for the remainder of the semester for violating the Non-Discrimination and Anti-Harassment Policy. Sasser was also prohibited from joining any other UGA athletic teams and attending any of Georgia’s home sporting events until January 2020.

The Red & Black filed an open records request for the EOO’s original findings in Sasser’s case, but was denied access under an exemption for records covered by the Family Educational Rights and Privacy Act.

Sasser’s lawsuit asks for the court to grant him monetary reparations for a potential loss of income and future employment opportunities because he was “ineligible” to be drafted or employed by any major professional baseball league.

Sasser is currently an infielder with the Sussex County Miners, a baseball team in the Frontier League. He also played for several months with the Sioux City Explorers, a team in the American Association of Professional Baseball.

The lawsuit also requests monetary compensation for mental and physical suffering, emotional distress and damage to his reputation. Sasser also asked for compensation for being unable to complete his academic classes in person at UGA and subsequently “being forced to enroll in another university,” according to the lawsuit.

According to his Facebook page, Sasser graduated from UGA in 2020.

Sasser’s lawsuit also alleges that his EOO investigator, Eryn Janyce Dawkins, who is a Black woman, was biased against him. According to the lawsuit, Dawkins advised that she was personally offended by Sasser’s use of the racial slur.

The complaint alleges that Dawkins’ statement hindered her ability to act as an impartial fact finder and had a “chilling effect” on Sasser’s ability to present a case or defense.

Dawkins retired from her position in the EOO on Oct. 1, 2020 and did not respond to a request for comment.

UGA disputes the allegations in the lawsuit, said UGA spokesperson Greg Trevor.

“No rights are more highly regarded at the University of Georgia than the First Amendment guarantees of freedom of speech and expression,” Trevor said in an email to The Red & Black. “At the same time, the university does not tolerate racist behavior that is discriminatory, harassing, or creates a hostile environment within the campus community.”

Student-athlete standards

Student-athletes exist somewhere on the spectrum between students and employees, which creates an array of problems for courts attempting to decide their First Amendment protections, LoMonte said. He explained that students of a college enjoy more First Amendment protections for their speech than employees of a college. 

LoMonte said it’s possible that UGA’s athletic code of conduct will be cited to argue that Sasser’s status as a baseball player made him a representative of UGAAA at all times.

“If he had been in his athletic garb and it had been a baseball game, maybe that argument might work,” said Catherine Ross, a professor of constitutional law at the George Washington University Law School. “But he wasn’t. He was in the [football] stands as a regular person. He wasn’t representing anyone but himself.”

The speech rights of K-12 students not participating in school-sponsored expressive activities, such as newspapers or theatrical productions, are generally governed by one landmark Supreme Court case: Tinker v. Des Moines.

A college student’s speech rights

The Supreme Court has not expressly stated whether the precedent set by the Tinker decision applies to college campuses.

Ben Holden, a professor of media law at the University of Illinois, said considering whether the standard applies to UGA’s campus is the most important aspect of evaluating Sasser’s case.

Without considering the Tinker decision, “You can’t really have a substantive discussion about whether Sasser’s case has merit,” he said.

In the absence of a Supreme Court precedent, federal trial courts, such as the one where Sasser filed his complaint, defer to decisions made by the U.S. Court of Appeals in their respective circuits. The 11th Circuit, which covers the states of Alabama, Georgia and Florida, has also yet to rule on whether the Tinker standard applies at the college level.

The argument for Sasser’s freedom of speech also reckons with the issue of forum. The Supreme Court has established that protections on the right to speak vary based on the speakers’ chosen forum. Sanford Stadium is government-owned, but not designated by UGA as a public forum and would likely be categorized as a nonpublic forum, said retired UGA Professor William Lee, who specialized in First Amendment law.

In a nonpublic forum, the government — in this case UGA — may restrict speech as long as the restriction is reasonable and does not discriminate based on viewpoints.

UGA’s Freedom of Expression policy outlines that opportunities to speak freely and protest will be provided on an equal basis regardless of content or viewpoint. However, the policy does not govern areas of campus that are not publicly accessible, which includes Sanford Stadium.

“Ticket holders at athletic events are required to abide by the facility and university policies, including the university’s Non-Discrimination and Anti-Harassment Policy,” Trevor said, referencing the same policy Sasser was punished for violating.

The anti-harassment portion of the policy follows the legal standard established by Davis v. Monroe County Board of Education, in which harassment is defined as creating a hostile environment “so severe, pervasive and objectively offensive that it deprives the victim of access to educational opportunities or benefits provided by the school.”

Following Sasser’s display, UGA students expressed their views about the offensiveness and severity of Sasser’s speech. In an op-ed for The Red & Black, Obianuju Okeke said although a slur may seem like just a word, “its effects are traumatizing and triggering for Black students.”

However, to satisfy the legal standard for harassment, the speech must also be pervasive. Sasser’s case prompts the question of whether the use of a racial slur by one white student — at one event — will meet the court's requirements to be considered harassment.