How Adam Sasser’s lawsuit reckons with free speech rights at UGA – Red and Black

By March 23, 2021, all defendants in former Georgia baseball player Adam Sassers 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. Sassers lawyer submitted an amended complaint on Feb. 18.

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

Sassers 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 Sassers suit contained many factual errors.

Additionally, the complaint alleges that Sassers 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.

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

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

Youre giving credence to white supremacy by using it [the racial slur], English said.

In Sassers 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 dont 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.

Sassers 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 didnt begin or end with Sasser, but at the close of his court case, the judiciary may decide if it can continue.

Its not even just about the N-word, its about this history of the institution and what the significance of saying it is, right here, English said.

Sassers lawyer, Dorothy Spinelli, declined The Red & Blacks two requests for comment. Sasser did not respond to The Red & Blacks two requests for comment.

Sassers 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.

UGAs 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 Georgias home sporting events until January 2020.

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

Sassers 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.

Sassers 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 Sassers 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 Sassers 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-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 its possible that UGAs athletic code of conduct will be cited to argue that Sassers 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 wasnt. He was in the [football] stands as a regular person. He wasnt 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.

The Tinker decision allows schools to regulate expression that would materially and substantially interfere with their operation, but in order for school officials to use that power, they must demonstrate more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint and more than undifferentiated fear or apprehension of disturbance.

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 UGAs campus is the most important aspect of evaluating Sassers case.

Without considering the Tinker decision, You cant really have a substantive discussion about whether Sassers 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 Sassers 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.

UGAs 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 universitys 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 Sassers display, UGA students expressed their views about the offensiveness and severity of Sassers 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. Sassers 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.

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How Adam Sasser's lawsuit reckons with free speech rights at UGA - Red and Black