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Coaches claim conservative volleyball player is 'public figure' to defeat her First Amendment suit

Kylee McLaughlin accepted limits on her speech rights to join team and now wants to censor her former coaches, they claim.

Updated: August 10, 2021 - 10:51pm

A college volleyball player branded a racist and pressured by her coaches to leave the team cannot sue them for First Amendment violations because she's a public figure, according to a novel legal defense raised last week.

University of Oklahoma coaches Lindsey Gray-Walton and Kyle Walton said Kylee McLaughlin targeted them with a "strategic lawsuit against public participation" in violation of the state's anti-SLAPP law. 

It's the married couple's second motion to dismiss the federal case, but the first to invoke the Oklahoma Citizens Participation Act. McLaughlin is also suing the university for violating Oklahoma law protecting freedom of expression for public university students and intentional infliction of emotional distress.

Jonathan Turley, George Washington University law professor, expressed amazement at the coaches' reverse-censorship argument when shown the filing.

"The irony is considerable," he wrote in an email to Just the News. The coaches "are arguing that their alleged actions against this student for her exercise of free speech is itself protected as free speech. It ignores the position of authority exercised by the defendants."

McLaughlin alleges that the coaches discriminated against her, a known conservative Christian, for sharing her views as asked during a mandatory team viewing of the black incarceration documentary 13th following George Floyd's death.

They also pressured her to delete a tweet mocking the rival University of Texas for considering removal of its purportedly racist fight song, "The Eyes of Texas," according to the suit. 

"We can't save you when you get into the real world," Gray-Walton, the head coach, allegedly told McLaughlin during an accusatory meeting with fellow players and a diversity, equity and inclusion (DEI) official. "Not sure I can coach you anymore," said Walton, the assistant coach.

They gave her three options on the eve of the 2020-2021 volleyball season: Redshirt the season, practicing alone with Gray-Walton and taking DEI training; keep her scholarship and leave the team; or transfer to another school.

While she initially chose to redshirt, McLaughlin soon sought a transfer based on alleged discrimination she continued to face in the program, including Gray-Walton's false COVID-related excuse for not practicing with her. She's now at the University of Mississippi.

Republican Oklahoma Gov. Kevin Stitt sided with McLaughin when she sued. "It's shameful that young people on college campuses, and in today's world, even K-12 classrooms, who dare dissent from the left's agenda are being punished," spokesperson Carly Atchison told The Daily Caller News Foundation.

Implications are 'chilling'

McLaughlin filed suit a month before the Supreme Court ruled a high school cheerleader could not be suspended from the junior varsity squad for a profane weekend Snapchat rant after failing to make varsity. 

In that case, known as Mahanoy, the school district argued that team cohesion overruled the cheerleader's First Amendment rights, but the high court found that her rant didn't threaten team cohesion. 

It's not clear how the precedent could affect McLaughlin's case. She referred to it in a subsequent filing, but the coaches argued the K-12 case doesn't apply to the university context and they can't be held accountable retroactively even if it did.

McLaughlin called out the coaches for selective enforcement of social media rules for student athletes. They took no actions against other players who shared political views, called her a racist or otherwise threatened team cohesion, including by posting videos of players drinking alcohol in the locker room.

The coaches' first motion to dismiss emphasized that they were entitled to qualified immunity as government employees and that McLaughlin knowingly limited her speech rights by joining the team. 

The player was "free to make bigoted statements" but not escape "the consequences of how her teammates perceived those statements," they said June 25. Gray-Walton, the head coach, made a "reasonable" forecast of "substantial disruption" and a threat to the team's success if McLaughlin stayed on the squad.

The university made a similar argument, claiming that McLaughlin "caused her own harm" by filing suit and drawing public attention to her statements, including that black people are "incarcerated mostly for marijuana and drugs." It also alleged she couldn't sue in federal court.

"The implications of this argument are chilling," law professor Turley wrote. "It would suggest that any unpopular athlete can be — and should be — excluded to 'cultivate a winning team,'" whether such a blackballed athlete be a supporter of Black Lives Matter or an opponent of abortion rights.

The Aug 3. motion to dismiss, based on the Oklahoma Citizens Participation Act, tried to flip the free-speech script on McLaughlin.

She had accused Gray-Walton of posting disparaging comments about President Trump's supporters, including that "racism wasn't a dealbreaker" for them. The coach allegedly pressured players to kneel during the national anthem during a joint meeting with a DEI official.

In a team group text that appeared to single out McLaughlin, the coach said disagreement would not be tolerated if it is "rooted in my oppression and denial of my humanity and right to exist." 

The coach's speech as an employee is protected by the Supreme Court's 52-year-old student speech precedent, known as Tinker, the motion said. McLaughlin launched "an assault on the free expression" of her coaches, whose speech "does not interfere with the mission" of the university.

Under Oklahoma's anti-SLAPP law, the coach was speaking on a "matter of public concern" because it involved the team's well-being and McLaughlin is a public figure, Gray-Walton said. The player has called herself "nationally recognized" in her sport, as recognized by her awards.

"The news worthiness [sic] of the Texas Fight Song and the George Floyd murder make all those communications related to and in response to matters of public concern and community well-being," the filing said.

The Foundation for Individual Rights in Education, which has often defended the speech rights of student athletes, told Just the News it was following the case but couldn't immediately comment on the coaches' arguments for limiting their students' speech rights while protecting their own.

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