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

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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.

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17 Comments

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bcchtta7

As a former cheerleader myself I feel that this school must have gone out of it's way to single H.S. out for this. For one thing in the four years I was a cheerleader I have witnessed several cheerleaders, including myself, actually storm out of games for various reasons, one where a girl had to cheer for an ex who cheated on her. If in these cases none of us were ever kicked off the team, or infact even approached by school officials other than our own coaches, then I don't see why this case was dealt with so harshly. Furthermore almost all Cheer-constitutions that squads follow specify that they cheer for the school and its teams, NEVER individual players. In fact singling players out is strongly discouraged as sometimes it can distract them. I personally can't imagine attending a school that would take back a player charged with rape and convicted of assault, I know that our basketball coach would have never tolerated it. I also cannot comprehend a school that would punish a victim while rewarding a criminal, it truely baffles my mind. Does this school realize that by doing this they are condoning this behavior among their athletes? If he has any right at all to continue playing for this school then she, and every other student there has the right to ignore, or even ridicule him. Personally I'd consider getting the student body to cheer for the other teams until he's gone. I am truely disgusted by this school's conduct and am insulted on behalf of this cheerleader.

November 11 2010 at 10:49 PM Report abuse +5 rate up rate down Reply
lcmm66

More and more I encounter "victims" of the system in my work. I admire this young woman and her family who refuse to bow down to the message that she has no right to stand up for herself and to shine light on what was done to her. We would never knowingly ask crime victims to support their perpetrators in any other scenario that I can imagine. If the school officials had chosen, they could have shown compassion by working with this cheerleader to permit her to step out when this player was front and center. Instead they chose to make a negative example of her courage and self caring behavior (to not cheer for the young man who raped her) and to yet again victimize the victim. The message is that if someone does something shameful to you, you must have deserved it so by God, don't tell anyone. Abusers believe that their victims deserve to be abused. By kicking this courageous young woman off of the team, the school officials colluded with the abuser. Now several courts have colluded with the abuser. What is the message these courts want to send to the public? Obviously the alleged rapist got the message loud and clear. He continued to perpetrate his abuse on others. We have a long way to go as a culture when it comes to holding perpetrators accountable for their crimes.

November 11 2010 at 10:47 AM Report abuse +6 rate up rate down Reply
James P Sanders

the school should have use common sence and understood that their is the chance she might being telling the truth and this rape did happen, they should understand her felling toward him, because it seems like to me that they do not beleive her, just because there is not enought evidence to charge them doesnt mean it did not happen, i may be wrong but thats the way i see it.

November 11 2010 at 10:40 AM Report abuse +4 rate up rate down Reply
mailguy2723

Let me get this straight she was sexually assaulted by him and he was given a lesser charge and not punished. This girl is a minor so what the Texas court is saying is sexual assault of a minor is ok but if he took nude pictures of her he would go to jail and be labeled a pedophile for possessing child porn. Actually coming from a state where Bush was governor and probably appointed these judges it shouldn't be suprising.

November 11 2010 at 9:15 AM Report abuse +2 rate up rate down Reply
jberlin330

I think poor judgement was used by the school for allowing such a person on the team in the first place and for making more out of the cheerleaders actions- she may have made more of it than just not cheering though. I know some athalets can feel an entitlement because of their skills and the school should have conduct policys in place and not reward players who violate them with the privlage of being on a team. While i don't in any way condone the players actions i do not feel that someone has a "right" to express their beliefs or feelings as part of a team and be able to sue for them. This was going to become an issue sooner or later with both being involved in the same sport and if the school knew it i feel they picked the wrong one to reward with spot on the team. It shouln't matter if your a good player if your a dirtbag preditor who doesn't know how to behave with women.

November 11 2010 at 8:42 AM Report abuse +6 rate up rate down Reply
The Real Howard S

If I posted my true reaction to this article I fear that I might be sued by some of the individuals named. Should I ever travel to Texas I will give the town of Silsbee a wide berth. A proper reaction for state officials would be to bar Silsbee schools from participating in athletic competitions for a period of one year.

November 11 2010 at 7:46 AM Report abuse +14 rate up rate down Reply
jadagidget

what about the national sports organization where you have to agree to behave a certain way or be taken of the team. this boy should have been removed and not allowed to play as conduct not acceptable..My son was caught drinking when he was 17 and a star defensive player he was taken off ALL sports for one year. Where is the accountablity for this sports player,,just because he is good disregard the fact of his conduct???? Come on Texas i know you cand do better than that.

November 11 2010 at 6:54 AM Report abuse +15 rate up rate down Reply
sojka027

Why is this criminal playing school sports ? The school lets him play because he is good at sports ? If he does not learn the consequences of his actions now , you can clear out a jail cell for him when school is out. SHAME ON YOU COACH WHERE IS YOUR CHARACTER?

November 11 2010 at 6:14 AM Report abuse +15 rate up rate down Reply
warwolf244

See, the problem I have here is that she claims this guy raped her. There is no proof of it, however. Just because she says it, this makes it true....why, exactly? Rape is a horrendous crime perpetrated against men and women BY men and women alike. (Yes, Men can and have been raped by women, but our legal system is so messed up that it seems dead set on denying the idea that women are just as capable of evil as men are in this regard.) Let us also remember something else: while he was -charged- with sexual assault of a child, and apparently convicted of a lesser charge, in that case the charges were brought and while the original charge was not proven, another one was. How do we know 'H.S' is being truthful in her allegation of being raped? How do we know she isn't just trying to cause trouble for someone she dislikes? Apparently this girl never even managed to get him indicted. Why? How is it that these three boys were arrested on charges of sexual assault of a girl their own age in a court system that loves to throw men to the wolves if a girl claims to have been raped, and yet weren't indicted? Simply put, a clear lack of evidence must have been the reasoning here. Why would there be a lack of evidence to warrant an indictment? Well, there's the obvious one: The charges were either false, or there was some other witness, whether by sight or sound, to the alleged crime. Furthermore, if you want to refuse to cheer for someone because they raped you? Well, isn't it kind of obscenely foolish to the point of ABSURDITY to remain on a cheerleeding squad knowing there are cheers distinct to a specific player or players, yet you decide to stay on the team? If this guy was still on the team (and in this case he was), and yet you refuse to do something you VOLUNTEERED to do, what the devil do you expect? H.S.' case, sadly, does not gain any sympathy from me simply because there are too many holes in the situation. She claims to be raped by the guy, but can't get him indicted. he gets convicted of a lesser charge when someone ELSE is supposedly sexually assaulted, and is STILL left on the team. Either this guy's made of teflon, or somewhere along the way, this story was seriosuly chewed on by someone who wants this girl to look more sympathetic than he does simply to stir up controversy. I mean why was she still on the cheerleading squad knowing this guy is still on the sports team she's supposed to cheer for and knows there are cheers that specifically mention the guy? Why did she think that she -wouldn't- be cut from a cheerleading squad for refusing to do what she joined a group specifically designed to cheer for a team this guy was on? As said by the immortal Bard: Something is rotten in the state of Denmark.

November 11 2010 at 2:52 AM Report abuse -5 rate up rate down Reply
2 replies to warwolf244's comment
shannon18006

its not her job to get him indicted

November 11 2010 at 10:02 AM Report abuse +1 rate up rate down Reply
jtfee

"there are cheers distinct to a specific player or players" I don't watch high school sports anymore, but is this common now? Is this done in college or professional team sports? This glorification of an individual involved in a team sport doesn't seem to advance the notion of "team" or the institution represented. OTH, the boy should not have been on the team at all, based on the other things reported in the article. Shame on Silsbee.

November 11 2010 at 10:31 AM Report abuse +5 rate up rate down Reply
JOHN

She should have cheered if that is what she was there for. However, what the heck is this school letting a kid with all these sex charges and an anger issue represent them. Are sports so important in Texas that they can negate the quality of the person?

November 11 2010 at 2:33 AM Report abuse +3 rate up rate down Reply
1 reply to JOHN's comment
DOO

Yes and it is not just a Texass problem...it's a nationwide problem...case in point dog killer mike vick

November 30 2010 at 3:18 PM Report abuse rate up rate down Reply

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