Former Rep. Earl Ehrhart, R-Powder Springs (Photo: John Disney/ALM)

A Georgia legislator accused of conspiring with a local sheriff to bar college cheerleaders from kneeling during the national anthem has asked a federal judge to dismiss the claim, contending that student athletes' constitutional rights are more limited than those afforded to the student body at large.

State Rep. Earl Ehrhart, a Cobb County Republican who is retiring from the Georgia General Assembly this year, contended in a motion filed Wednesday that student athletes who attend state-funded universities are excluded from the constitutional right to free speech afforded by the First Amendment because they are representatives of their colleges or universities—and by extension means the government that funds them.

While private speech is a constitutional right, government speech shares no similar protections, Ehrhart's motion to dismiss argues.

The suit, pending in federal court in Atlanta, was brought by KSU cheerleader Tommia Dean, one of five African-American cheerleaders who knelt on the field during the national anthem at a football game last year. It also names Cobb County Sheriff Neil Warren, former KSU president Sam Olens—now a Dentons partner in Atlanta—and two members of KSU's athletic department as defendants. Only Ehrhart has responded to the suit.

Dean, now a KSU sophomore, was not selected as a cheerleader this year. Her fellow cheerleaders who knelt with her were all seniors and have graduated. Dean's suit claims that the defendant public and university officials violated her constitutional free speech right when the kneeling cheerleaders were barred from the field until after the anthem was played, effectively silencing the group. The ban was implemented after they knelt in solidarity with former San Francisco 49ers quarterback Colin Kaepernick's similar demonstration to protest police brutality.

Dean's suit also claims that Ehrhart and Warren also violated the 1871 Ku Klux Klan Act, by conspiring to violate her constitutional rights or exert pressure on other public officials to do so. Dean is represented by Atlanta attorney Bruce Brown. The case has been assigned to Judge Timothy Batten of the U.S. District Court for the Northern District of Georgia.

Ehrhart has served as the House Republican whip, as Rules Committee chairman and chairman of the higher education appropriations subcommittee before announcing his retirement from the Legislature last spring to become CEO of a lobbying firm associated with Atlanta's Taylor English Duma. His wife, Ginny, is running for his vacated seat.

Ehrhart attorney, Jonathan Crumly of Taylor English, argued in an Oct. 17 motion to dismiss the plaintiff “was not engaged in private speech when she kneeled during the national anthem on the restricted portion of the field of a government-owned football stadium, at a government-sponsored event, as a member of a government sponsored and regulated student athletic organization.”

“Rather, [she] was engaged in government speech, which the free speech clause does not regulate in any fashion,” he said.

“Despite the many misguided beliefs surrounding the concept of free speech, the words guaranteeing a person the right freely to speak their mind are neither literal nor absolute,” Crumly wrote.

In asking to dismiss the case, Crumly contended that KSU “was within its rights to restrict the expression of student athletes representing KSU, wearing KSU uniforms, and engaging in KSU-sponsored activities during a KSU event within a restricted area of a KSU owned football stadium.”

“The field and the surrounding stadium is government land, owned and operated by, and associated with, an arm of the state,” Ehrhart's motion added. “As a result, [Dean's] on-field protest carries with it more association with the school itself than it does the particular individual carrying out the protest.”

Crumly added that constitutional rights are “subject to reasonable limitations” that are “more pronounced in the context of a student athlete at a college or university” whose rights “are less protected than those enjoyed by the general public.”

“By choosing to 'go out for the team,' [student athletes] subject themselves to a degree of regulation even higher than that imposed on students generally,” he said. “They voluntarily subject themselves to speech codes, curfews, requirements of good sportsmanship and even limitations on access to internet websites and social media services.”

Athletes may choose to exercise their right to speak, “but such speech will have consequences that may appear to conflict with the First Amendment,” he concluded.