When a college soccer player flips her middle finger at a television camera during an exuberant post-game celebration, is it protected speech or a constitutional handball? This was one of many questions the Second Circuit answered (or as we will see, failed to answer) in the recent case of Radwan v. Manuel, No. 20-2194, 2022 WL 17332339 (2d Cir. Nov. 30, 2022). The case involves a rich legal playbook: First Amendment, Due Process, qualified immunity and sex discrimination. And the case has not even been tried.

The Middle Finger

"In 2014, Noriana Radwan, a women's soccer player at the University of Connecticut (UConn) and recipient of a one-year athletic scholarship, raised her middle finger to a television camera during her team's post-game celebration after winning a tournament championship." Id. at *1. Radwan's scholarship covered tuition, fees, room, board and books. However, it could "be immediately reduced or canceled" if she "engage[d] in serious misconduct[.]" Id. at *2. The UConn Student-Athlete Handbook prohibited "[u]sing obscene or inappropriate language or gestures to officials, opponents, team members or spectators" and "[v]iolating generally recognized intercollegiate athletic standards or the value and standards associated with the University as determined by [the] Head Coach and approved by the Athletic Director." Id. Radwan also agreed to a "contract" created by the soccer coach to "comply with all University, Athletic Department and Women's soccer program rules concerning conduct and behavior." Id.