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Tuesday, December 10, 2013

College football and the Brandenburg Concerto

[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]

Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.

So what, you ask? Well, because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. Ku-xlarge According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.

So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy  Brandenburg v. Ohio and the requirement that the  lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?

Posted by Howard Wasserman on December 10, 2013 at 10:44 AM in First Amendment, Howard Wasserman, Sports | Permalink

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No.

Posted by: Orin Kerr | Dec 10, 2013 3:08:07 PM

As always, Orin, your analysis is both correct and detailed.

Posted by: Howard Wasserman | Dec 10, 2013 3:46:01 PM

Assuming he is a student, can MSU expel him?

Posted by: Nick | Dec 10, 2013 7:18:07 PM

In line with your subsequent post on Younger...if I'm that guy, I institute a DJA in federal court as soon as I can, and move for a TRO and PI. I didn't read anything in Jacobs that nullified the non-application of Younger if there have been "substantial proceedings on the merits" in a federal case.

Posted by: anon | Dec 10, 2013 7:28:58 PM

Anonymously I might add.

Posted by: anon | Dec 10, 2013 7:31:33 PM

I would argue no. MSU is a public institution, so any student conduct code remains subject to First Amendment limitations. Colleges don't get the same leeway in regulating student speech as high schools do. And even if it did, I cannot imagine a court would call his speech on-campus or school-related. Any university code of conduct must comport

Posted by: Howard Wasserman | Dec 10, 2013 7:31:49 PM

Anon: Interesting. Is there a standing (really ripeness, but courts keep confusing them) problem. Is the court going to demand some showing of a genuine risk of prosecution? And would he be able to make that showing based just on the call for information from Facebook?

Posted by: Howard Wasserman | Dec 10, 2013 7:40:52 PM

The fact that this is being discussed as a legitimate question is absurd.

Posted by: anon | Dec 10, 2013 8:00:49 PM

I thought about the ripeness issue. I don't know any of the facts except for what's in your post, but I'd argue that the sign at MSU game on TV + actual sofa fires as a result of MSU victory + FB post seeking info on his ID + FB money reward for info on disturbances = a justifiable fear/genuine risk of prosecution. The police aren't doing this for funsies.

Of course, with the DJA, judges always have more discretion to kick a case than they do to abstain, so he has to hope the judge wants to hear it anyway. (That itself is kind of a weird dynamic when you play out a case. Say a judge thinks Younger - or some other - abstention should apply. The standard of review I've seen is higher than abuse of discretion, which is what applies to DJA dismissal. So if the judge wants to get rid of the case and have it stick on appeal, he should dismiss under DJA to further insulate his ruling.)

Posted by: anon at 7:28:58 | Dec 10, 2013 8:52:26 PM

But does the *police* investigation necessarily equal a genuine fear of prosecution by the DA?

Posted by: Howard Wasserman | Dec 10, 2013 9:47:06 PM

After reading this, I promptly burned my couch. It needed burning though.

Posted by: anon | Dec 11, 2013 9:08:38 AM

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