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Friday, July 26, 2013

More fan speech

Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball.  Two other things.

First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.

Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech

We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.

But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.

Posted by Howard Wasserman on July 26, 2013 at 11:20 AM in First Amendment, Howard Wasserman, Sports | Permalink

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