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Sunday, March 09, 2008

North Carolina-Duke and Cheering Speech

During my prior stint here, I wrote a bit about my past, present, and future interest in fan expression at sporting events, what I call "cheering speech." There has been a great deal of attention paid to fan behavior this college basketball season. Two things happened with respect to last night's North Carolina-Duke men's basketball game that illustrate key principles of this category of expression. The game was played at Duke's Cameron Indoor Stadium, widely haled as the best home court in college sports, with the smartest and sharpest student fans engaged in the cleverest (and occasionally most tasteless) cheering speech.

First, Duke students worse Carolina-blue ribbons in memory of Eve Marie Caron, the UNC Student President who was murdered last week. I assume there was a moment of silence, but I did not see the beginning of the game. This was a wonderful gesture. And it illustrates the nature and breadth of cheering speech. Sporting events are a unique and singular secular gathering place, a place people regularly gather to engage in expressive activity. A great many messages and ideas get expressed through and around a ball game--often, as here, ideas and messages of sadness, mourning, and sympathy, an expression of collective grieving of a community. Of course, strictly speaking, these messages have nothing to do with sports or with the game. But that is my broader point about cheering speech--it covers everything that touches or surrounds sports and the game, including a great deal of broader social, political, and community issues. The consequence is that the speech at sporting events does have value and is entitled to significant First Amendment protection.

Second, early in the week, Duke Coach Mike Krzyzewski met with Duke students (video above) to talk about their cheering; he urged them to keep it classy and supportive of Duke and to be particularly sensitive in light of the events of last week. (H/T: Deadspin). Good for him and for Duke. Ultimately the key to controlling fan behavior is for those in charge (coaches, university administrators) to convince the bulk of students to keep it clean, to change student-section mores with respect to the type of cheering speech that is acceptable, and to get fans to self-police, for social pressure to bring everyone into line. In fact, that is how we develop and maintain a functioning civil society more broadly--not through government coercion, but through informal societal presses. I think that might be what is so special about the example of shaming punishment that Doug wrote about last week--the shaming came from someone other than the government, which changes how we might view it.

But a question after the jump that gets to the heart of the problem of cheering speech at public university arenas.

Suppose one fool decides to ignore those mores and social pressures by displaying a sign saying, for example, "Our President Lives, How 'Bout Yours?" Without question this is insensitive and obnoxious and rude and disrespectful. But it is not defamatory; it is not a targeted threat; it is not obscene (or even indecent); and it is not fighting words because not a directed face-to-face insult; it falls in no unprotected category of speech. So is there any theory of free expression, other than a sort of Borkean, the-First-Amendment-only-protects-political-campaigns-and-policy-discussions position that never has attained wide following, on which that sign should be formally punishable (ignore for the moment that Duke is a private university)?

Posted by Howard Wasserman on March 9, 2008 at 03:29 PM | Permalink


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I start by giving your comments back to you. "[G]et fans to self-police, for social pressure to bring everyone into line. In fact, that is how we develop and maintain a functioning civil society more broadly--not through government coercion, but through informal societal presses."
Eventually either the social pressure will deter people from distasteful messages or distasteful messaging will become the norm. Additionally, someone could diplomatically talk to the individual with the distasteful message with the hope of teaching them why it is not in our society's best interest to promote such messages. Understanding human psychology would be helpful.

Posted by: Pat Cuviello | May 13, 2008 6:46:46 AM

Your hypothetical suggested to me that you were looking for a way to ban "really offensive speech" without removing entire areas of subject matter from First Amendment protection, as would the Borkean "only substantive policy discussions" approach.

Leaving aside for the moment that banning "really offensive speech" would be administratively difficult (just look at the difficulty with obscenity prosecutions), it's hard to justify why "really offensive speech" should be prohibited once we take an expansive view of First Amendment rights, under which we generally want to encourage speech and generally don't want to distinguish speech based on its subject matter.

The constitutional free speech exceptions we do have invariably refuse to protect speech based on the idea that some types of speech harm others. We prohibit defamation because people's reputations are harmed when lies are told about them. We prohibit threats because people are psychologically harmed when they are threatened. We punish speech that incites imminent lawless action because such speech is likely to directly lead to physical harm. We refuse to protect fighting words for the same reason. We even ban obscene speech based on the idea that it has a tendency to harm its recipients by "morally corrupting" them. (We even give less protection to commercial speech based on the notion that consumers are harmed by buying products touted to them by false or misleading commercial speech.)

So, to ban "really offensive speech" (such as that mentioned in your hypo) under the expansive view of the First Amendment we currently have, you need to connect it to some type of harm.

Obscenity and fighting words are the only two categories that came to mind. Obscenity didn't seem to be a good fit to encompass really offensive speech. Nothing about the speech in the hypo could be viewed morally corrupting. Perhaps one could expand obscenity to include something like psychological harm, but the speech on the sign isn't likely to psychologically harm the recipients, it's just likely to make them temporarily really angry.

Fighting words seemed a better fit since the speech on the sign is calculated to provoke people--there seems to be no point to it other than to piss off the opposing fans. It also seemed possible to expand fighting words to encompass that sort of speech.

First, you could loosen the proximity requirement. Even if you doesn't eliminate it entirely, as I proposed, you could expand it beyond face-to-face communication such that a stadium would qualify (it wouldn't be hard for a UNC fan to walk to the other side of the stadium and punch the guy in the face or wait until after the game is over and do it in the parking lot outside).

Second, you could avoid having fighting-words become all-encompassing (who knows what sort of speech we consider innocuous will anger others?) by inserting an intent requirement. It seems pretty clear in your hypo that the person who made that sign intends to provoke a violent reaction. Obviously, he's not looking to get punched in the face, but he probably wants to provoke extreme anger in the recipients.

Of course, having a more expansive fighting words doctrine would pose difficulties, and I'm not advocating it. But I'm not so sure that a more expansive fighting words doctrine would become either a null set or all-encompassing; with judicial refinement, it could encompass just enough cases to be workable.

Sure, there are few instances where a speaker really intends his words to provoke an extremely angry (and likely violent) response, but such instances *do* occur. You'd still have criticism of the corrupt mayor, abortion providers, etc., because such speech is often plausibly intended to do more than provoke an extremely angry response. A KKK member spouting off at a demonstration plausibly intends to make points about the alleged inferiority of blacks rather than get black passersby angry. An anti-abortion activist who yells at a woman walking into an abortion clinic plausibly intends to express her opinion that abortion is murder (and get the woman to not go into the abortion clinic) rather than get the woman extremely angry. A flag burner plausibly intends to indicate his disapproval for a war or his displeasure with authority rather than get veterans extremely angry.

On the other hand, there are some instances where the speech plausibly has no other intent than to provoke great anger likely to result in violence. A KKK member who sends off a racist email only to black coworkers plausibly has no other purpose than to provoke such extreme anger. The same is true for a protester that goes to a Memorial Day parade and burns a flag right in front of a group of veterans. In your hypo, the sign-holder plausibly doesn't intend to inform UNC fans that his class president is actually alive; what he most likely wants is such an extremely angry reaction. (Of course, he could always argue his subjective intent was otherwise, but the circumstances belie that.)

Indeed, requiring intent would be a virtue of the new fighting words doctrine--it would narrow the class of unprotected speech to rare cases where such intent is present. In any given case, you'd need to inquire into the totality of the circumstances, such as the nature of the speaker, the event, the content of the speech, etc.--to divine intent. Far from banning flag-burning or anti-abortion speech and sharp criticism entirely, it would merely require judges to closely scrutinize any given case for intent and (something like) reasonable likelihood of extremely angry reaction giving rise to the possibility of violence. The test may ultimately take some more refinement than what I've presented here, but I don't see why it's not possible to construct a test that avoids the extremes of covering no cases and prohibiting all cases of pointed, vehement criticism.

Posted by: Stephen Aslett | Mar 10, 2008 7:14:23 PM

Aside from my general reluctance to do anything that might "extend" the fighting-words doctrine, the problem is that this extended category is either a null set or all-encompassing. It is a null set because there are few situations, if any, where a public speaker's intent is to cause someone to respond to his words by punching him. Alternatively, wouldn't it render proscribale a great deal of sharply worded and pointed criticism of any particular group or person--the corrupt mayor, abortion providers or anti-abortion activists, Democrats or Republicans, veterans or war opponents? It seems to me it also would pull flag-burning beyond protection--burning a flag targets, in a sense, all Americans and certainly is likely to provoke a violent reaction from veterans.

Posted by: Howard Wasserman | Mar 10, 2008 10:45:15 AM

How about extending the fighting words exception to encompass something like "speech directed at a specific person or group intended and reasonably likely to provoke a violent response by that person or group against the speaker regardless of the proximity of the speaker to those being addressed?"

Adding an intent requirement and getting rid of the physical proximity requirement (i.e. the face-to-face requirement) for fighting words aren't new ideas and don't upend conventional theories of free expresion. See, e.g., Michael J. Mannheimer, Note, The Fighting Words Doctrine, 93 Colum. L. Rev. 1527, 1571 (1993) ("[I]n order to more fully protect the value of insulting language, the Court ought to modify the fighting words doctrine by including a requirement that the speaker intend for his or her words to result in violence before the words are deemed unprotected."); Sanjiv N. Singh, Cyberspace: A New Frontier for Fighting Words, 25 Rutgers Computer & Tech. L.J. 283, 336 (1999) ("[T]he conventional wisdom that fighting words can only operate in the face-to-face context must be reconsidered. By redefining our notions of time and space, it is possible to establish imminence in cyberspace. In view of the cyberspace communication revolution, technological proximity must replace physical proximity when fighting words are used in the cyberspace setting. In either case, the perception that violent response is possible is preserved, and the likelihood of immediate breach is sustained.").

Posted by: Stephen Aslett | Mar 10, 2008 2:06:46 AM

I said "widely haled as . . ." -- I was not endorsing the view, just stating it. And any conversation about student cheering inevitably begins and ends with the Dukies.

Posted by: Howard Wasserman | Mar 9, 2008 5:47:54 PM

Duke, "with the smartest and sharpest student fans engaged in the cleverest . . . cheering speech"

Is Dick Vitale guest blogging at PrawfsBlawg?

Posted by: Hoops Fan | Mar 9, 2008 5:41:03 PM

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