Court To School: No ‘Imminent Injury’ In Not Being Able To Broadcast Pre-Championship Game Prayer Over PA Because Your Team Sucks

Free Speech

from the ah-the-ol-non-compete-clause dept

Well, this is certainly one of the more entertaining decisions I’ve ever read, even though most of it deals with the more boring side of civil rights litigation, i.e., questions of standing and mootness. I mean, those can be interesting but they’re far less interesting than seeing a court dig into cases where the either the rights violations are egregious or, conversely, the lawsuit is being brought by unserious people who think anything anyone does to them, whether it’s a government agency or a private company, must be a violation of their rights.

That being said, this is more the latter than the former. Cambridge Christian School is the plaintiff. And it fervently believes (I mean, faith is pretty much its whole deal) it has been wronged because the Florida High School Athletic Association (FHSAA) violated its rights by not allowing it to do an over-the-air broadcast of its preferred prayer prior to a championship football game it played [re-reads ruling] in 2015.

Cambridge believes its First Amendment rights have been violated by the FHSAA’s refusal to allow it broadcast its prayers over venue PA systems prior to championship games. It can only aver to one such alleged violation, since the last time it played in a championship game was nearly a decade ago.

The FHSAA says there’s no discrimination here, nor any denial of Cambridge’s free speech rights. It has had a PA policy in place for years that requires announcers to be as firmly neutral as humanly possible, restricting their speech to only facts about what’s happening on the field. From the Eleventh Circuit Appeals Court decision [PDF]:

The FHSAA creates scripts for all playoff football games, including state championship games, and expects PA announcers to follow those scripts. It also has a protocol that governs the use of PA systems at playoff games. According to that protocol, PA announcers must follow the PA scripts the FHSAA gives them for promotional announcements, player introductions, and awards ceremonies. The protocol limits all other announcements to: emergencies; lineups for the participating teams; messages provided by host school management (for the non-championship playoff games when there is a host school); announcements about the sale of FHSAA merchandise and concessions; and other “practical” announcements (e.g., there is a car with its lights on).

As for game play, the PA protocol instructs PA announcers to recognize players attempting to make or making a play and to report penalties, substitutions, and timeouts. PA announcers may not call the “play-by-play” or provide “color commentary” (as if they were announcing for a radio or television broadcast), and they may not make comments that might advantage or criticize either team.

There’s nothing in this policy that even suggests it might be ok to let either competitor roll into the announcing booth and broadcast its prayer of choice. Giving it to one team could be perceived as unfair to the other team. Giving it to either might suggest the FHSAA has a preference in deities and supports whatever message is delivered by the team’s prayer. Giving it to both schools (if both are religious schools) just doubles down on that message. Therefore, the safest route is the one governed by these rules and delivered (in championship games) by a neutral announcer who works for neither school participating in the game.

Nonetheless, the 2015 denial still weighs heavily on the school, which has chosen to neither forgive nor forget. It also fervently believes its First Amendment concerns outweigh the First Amendment issues that would be raised if a government entity (like the FHSAA) decided to start blending some church in with its state action, even as limited as it would be in this sort of situation.

But going beyond that, there’s a question of whether Cambridge even has standing to bring this lawsuit at all. After all, to obtain the injunction its seeking — one blocking the FHSAA from blocking its PA prayers — relies on demonstrating there’s some sort of foreseeable and ongoing injury from being denied its prayer requests.

And that’s where this decision almost veers into snark. And it would be forgivable if it had. But this court is far more restrained than I could ever be. It simply points out the facts: this football program hasn’t done a damn thing for most of a decade. Any “injury” from prayer blockage at championship games isn’t “foreseeable.” It’s imaginary.

The school seeks “an injunction barring FHSAA from enforcing the Prayer Ban and prohibiting FHSAA from discriminating against religious speech over the loudspeaker.” It defines the “Prayer Ban” as the FHSAA’s 2015 “policy prohibiting schools participating in the football state championship game from using the stadium loudspeaker for pregame prayer.” In other words, the school has limited its request for equitable relief to pregame prayer over the PA system at FHSAA state championship football matches. As Cambridge Christian puts it: “[Cambridge Christian] annually competes to make it to the championship game and, if it reaches that game, it will be denied the ability to engage in its constitutionally protected religious practice and speech.” But only, we would add, if it wins all of its playoff games leading to the state championship game, the final one.

Kudos to the clerk that formatted this decision. Because that’s the last sentence of the 19th page — one that gives readers only the tiniest hint of what’s to come. You have to scroll to the next page to see the last sentence explained in the context of the school’s claims — two solid paragraphs of verge-of-snark writing that makes it clear why Cambridge has no standing to sue. (All emphasis mine.)

Here’s the problem with Cambridge Christian’s position. Its football team has not returned to the FHSAA state championship since 2015. In fact, 2015 is the only year the team has ever made it to the state championship since the school started its football program in 2003. Only once in two decades.

Cambridge Christian acknowledges that its standing theory relies on “speculation” that it “will make it to another championship game,” but the school contends that that speculation does not defeat standing because there’s no need to prove that future harm is certain. True, Cambridge Christian is not required to demonstrate “that it is literally certain that the harms [it] identif[ies] will come about.” But the school does need to demonstrate that future injury is “certainly impending,” or at the very least, that there is a “substantial risk” that the harm will occur. And given the Lancers’ past performance on the gridiron, it cannot meet that standard.

All the more so because as Cambridge Christian admits, the “competitiveness” of its football team “has waned” over the last few seasons, and the team is now in what it calls a “rebuilding phase” that it expects to last for a “few years.” Hope springs eternal but standing cannot be built on hope. With all due respect to the Cambridge Christian Fighting Lancers, there’s nothing to suggest that the team’s participation in a future football state championship is imminent or even likely.

Yikes. It’s one thing to witness the year-to-year failure to compete. It’s quite another to have that pointed out to you by appellate-level judges. Maybe next year? Or the year after that?

This assessment of the future of the Fighting Lancers aside, there’s another problem with the lawsuit. The rules have changed since the alleged injury from nearly 10 years ago that the school has been suing about for the better part of a decade. (It filed this suit December 2016.) A recently passed state law allows school reps to take over the PA for a few pre-game Hail Marys or whatever prior to high school sporting events.

In May 2023 the Florida legislature passed House Bill 225, which required the FHSAA to “adopt bylaws, policies, or procedures that provide each school participating in a high school championship contest or series of contests under the direction and supervision of the association the opportunity to make brief opening remarks, if requested by the school, using the public address system at the event.” The law became effective on July 1, 2023.

In response, the FHSAA adopted a policy that allows schools participating in state championship events to make brief opening remarks over the PA system. According to the new policy, the remarks may not exceed two minutes per school and may not be derogatory, rude, or threatening. And “[b]efore the opening remarks, the announcement must be made that the content of any opening remarks by a participating school is not endorsed by and does not reflect the views and/or opinions of the FHSAA.”

And there’s the mootness. Even if Cambridge somehow finds a way to field a competitive team within the next decade, it can fire off a 2-minute prayer over the PA system prior to taking the field during championship games. Even in its wildest speculation of instant competitiveness, the injury it claimed to have suffered in 2015 (when it was denied its request to broadcast a prayer over the PA) is even more unlikely than the school’s sudden return to championship form to re-occur.

That’s (mercifully) the end of this lawsuit. I mean, I would hope. The court sends it back down to the lower court with instructions to vacate the ruling in favor of the FHSAA on the injunction request and replace it with… a declaration there’s no lawsuit to be had here. The other part of the prior ruling — the one dismissing the school’s First Amendment claims is upheld. It’s actually two losses in one. But if there’s anything this school is familiar with at this point in its history, it’s a steady string of losses in one arena or another.

Filed Under: 11th circuit appeals court, 1st amendment, church and state
Companies: cambridge christian school, florida high school athletic association