By John Sczepanski
The First Amendment of the United States stands as one its major pillars of democracy. As the United States evolved, the amendment stretched out to arenas and situations where it never could have anticipated. One of the areas where the First Amendment right to free speech is entering into a somewhat gray area is sports. From the stadium environment to press conferences, First Amendment rights and sports are becoming increasingly in conflict. Traditionally, fans expressed themselves freely both through actions and words as they enjoyed their favorite events. Yet, as the world of sports continues to evolve, the breadth of fan’s speech rights protected under the First Amendment are being brought into question. Massive publicly funded stadiums are being erected across the country in both cities and campuses, but in many situations, those same stadiums do not tolerate free speech. Further, in most cases these stadiums receive mass amounts of public funding that arguably make them into a quasi-public facilities. Since the taxpayers are paying for these buildings, full First Amendment Rights should exist inside.
First, to understand whether these stadiums should be treated as public entities, it must understood how much the public actually contributes to their construction. From 1999 to 2009, the Commonwealth of Pennsylvaniabuilt fifty-six stadiums, four of which were major sports stadiums, two in Philadelphia and two in Pittsburgh respectively. To build these stadiums, the citizens of Pennsylvania shelled out approximately 1 billion dollars. Bringing this a little closer to home, Lincoln Financial Field, home of the Philadelphia Eagles, was built at a price tag of $512 million dollars, $256 million dollars coming from Philadelphian taxpayers. In most cases, these stadiums, which are technically privately owned entities are so largely funded by the public that the case can be made that they are no different than a publicly funded sidewalk or town hall steps. Author Nick DeSiato articulates this concept stating
The combination of privately owned professional sports clubs and publicly funded facilities creates a unique professional sports private-public hybrid that remains legally complex and largely unsettled amongst courts. Whereas purely public entities are subject to constitutional restrictions, purely private entities are most often not. Therefore, the combination requires further analysis.
The determination of whether or not these stadiums are private or public entities holds the key to establishing First Amendment Rights. This issue of fan rights during sporting events has been brought to forefront of First Amendment rights cases in recent years. On August 26, 2008, Bradford Campeau-Laurion attended a New York Yankees game. Mr. Campeau-Laurion decided to use the restroom during the seventh inning stretch of the game, which is an extremely common practice at baseball games. Yet, as he attempted to go to the restroom he was forcibly ejected because following the September 11 attacks on the World Trade Center, the New York Yankees put in a stadium policy that fan movement was restricted during the singing of “God Bless America” during the seventh inning stretch. This situation brings to light the issue of whether or not a club has the legal right to hold you in your seat during a song such as “God Bless America.” According to Nick DeSiato, “A key legal issue arises when fans are so offended by the expression that they hold the club liable, such as the case with the Yankees’ “God Bless America” policy, leaving club’s general counsel scrambling to decide what content they were legally allowed to permit as well as what they are legally allowed to restrict in the future.” The Yankees “God Bless America” policy is an interesting case for various reasons. Most of all, the situation can be seen as forcing patriotism on the individuals who chose to attend the Yankees game. Mr. Campeau-Laurion’s lawsuit filed against the Yankees organization, City of New York, and the NYPD reiterates this issue alleging that Bradford Campeau-Laurion, a 30-year-old lifelong baseball fan, was the victim of religious and political discrimination on Aug. 26, 2008 when police officers forcibly restrained and ejected him from Yankee Stadium after he tried to walk past an officer during the playing of God Bless America. The above allegation has one extremely important point; the statement of “religious and political discrimination is a direct violation of the First Amendment Rights to every citizens to speak freely on such volatile topics. The lawsuit was settled in 2009 when the City of New York offered the plaintiff a fee of $12,000 to cover his legal fees and hardship. Another major issue regarding First Amendment Rights inside of a professional sporting venue is the language fans are allowed to use. Fans during games can heckle players, referees and coaches but what language do they truly have the luxury of using? Author Bill Pennington who questions,
Is a fan’s protest (known in some sports law circles as fan speech or cheering speech) a form of expression protected by the First Amendment?…..the question is apparently still open to debate,despite more than 150 years of American public sporting events. Legal experts say few precedent-setting court rulings deny, interpret or establish a fan’s right to rail at a referee. Hostile or excessively disorderly fan behavior is not tolerated by security officials at games, or for the most part by the court system, because it is deemed dangerous or disruptive to the group. But in the middle of a sporting event as fervent as the N.C.A.A. tournament, with passionate crowds and high stakes, what exactly defines disruptive?” (The New York Times).
The above statement presents a classical example how law is truly hard to enforce. In a hostile, high stakes game, with passion coming from every person in the building, how to we define the term “disruptive?” Of course, if there is someone running on the court or throwing objects then it is clear, but what is wrong with screaming and yelling at the opposing team or referees? Leaving vulgar language out of the argument, because most of these events have a good amount of children in attendance, how far should these large publicly funded stadiums be able to limit the fans right to free speech?
Sporting events directly affect law enforcement and first amendment rights. Howard Wasserman a law professor at Florida International University who has been writing about fan behavior and the First Amendment since 2001 stated,
When you go to a game, the governing body can control drunken behavior. It can control someone standing up and blocking the view of others. It can control signage if it blocks the view of others. Nevertheless, most views expressed, even loud ones, are protected speech. No one has the right to insist that the game be watched in silence.
The fans ability to scream and heckle is an essential right of fandom. However, a major issue comes up when you must distinguish between certain types of speech. For example, should there be a different reaction from security between holding up a sign stating “Fire the Coach” or a political statement such as “Repeal Obamacare?” Indeed, how far do First Amendment rights extend in a publicly funded stadium? An important and tricky part of the establishment of “fan speech,” is trying to come up with standards of rules and sayings that will not violate fan’s rights. There are certain rules that most can agree on such as racial slurs, or fighting but where do we draw the line on simply expressing your opinion in a loud fashion at a sporting event. The First Amendment of the United States should protect fans ability to make their opinion vocal at a public forum. Just like protesting at a public park, the stadium attending public should have the same rights as those who are protesting in other public forums.
Another, specific type of sporting arena where First Amendment rights are thrown into a gray area is the stadiums and gyms on state run universities. The sporting events at these publicly funded Universities draw massive crowds to these campuses and arenas. Scott Rosner, a sports business and law professor at the University of Pennsylvania’s Wharton School stated, “It is an interesting question, and we don’t have an exemplary test case that settles every aspect…But traditionally, courts have come down on the side that free speech at a sporting event has limits. It is a right that is revocable — maybe because the few fans that come before courts have really overdone it.” He goes on to present the situation of a person sitting at a Penn State football game, which is a publicly funded state university after the recent sexual abuse scandals, and loudly reading out the manuscript from the Jerry Sandusky trials. He is not doing anything wrong because he is just reading a public document and publicly owned facility. Yet, Rosner postulates that this fan will be removed from the stadium because it would agitate and annoy too many people around him. Yet wouldn’t this action violate his free speech right since he is making a political statement concerning how the University and football program handled the Jerry Sandusky scandal.
In conclusion, the sports are major part of American society and coming along with the vast popularity of the games, First Amendment Rights at stadiums must be addressed. The stadiums that professional and college sports team call home are largely publicly funded projects thus there must be complete free speech rights in these public places. If these stadiums were completely privately funded, or even a vast majority privately funded, then they should be exempt from First Amendment restrictions, but if these organizations are going to accept significant public funding to build their sparkling new stadiums, then they must abide by the laws set forth in the constitution.
Nick DeSiato “Silencing the Crowd: Regulating Free Speech in Professional Sports Facilities”
Marquette Sports Law Review. Volume 20. 2009
Bill Pennigton “Examining Fans’ Right to Jeer at Games” The New York Times. March 28,
Kotlarsky, Shane (2013) “What’s All the Noise About: Did the New York Yankees Violate
Fans’ First Amendment Rights by Banning Vuvulezas in Yankee Stadium?”
Jeffrey S. Moorad Sports Law Journal: Vol. 20: Iss. 1, Article 2.
Eric Dunning, Patrick Murphy and John Williams “Spectator Violence at Football Matches:
Towards a Sociological Explanation” The British Journal of Sociology , Vol. 37,
No. 2 (Jun., 1986), pp. 221-244
Matt Welch “Do You Have a Free Speech Right to Heckle Athletes, Coaches, and Referees
at Publicly Financed Stadiums?” March 29, 2012
By John Sczepanski