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Thursday, April 16, 2009

Finally! Fan challenges speech restrictions at publicly owned ballpark

A lawsuit was filed in the Southern District of New York yesterday by a baseball fan named Bradford Campeau-Laurion, who alleges that he was kicked out of Yankee Stadium last summer by two uniformed NYPD officers for trying to go the men's room during the Seventh Inning Stretch and the playing of God Bless America. (H/T: One of my civ pro students). He thus violated a Yankee/Yankee Stadium policy, enacted explicitly because the Yankees and others purportedly found people stretching during the Stretch "disrespectful."

Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the defendant plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).

I have argued at length (or ad nauseum) that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I obviously buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

This could be fun to watch. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

Posted by Howard Wasserman on April 16, 2009 at 07:54 AM in First Amendment, Howard Wasserman, Sports | Permalink


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Ack, the link didn't work.


Posted by: Marc J. Randazza | Apr 17, 2009 10:29:50 AM

I look forward to it. I really do hope you find something more hopeful than what I've found.

I wrote about it here. croll down to the UPDATE portion. Nothing would make me happier than you finding that I'm wrong.

Posted by: Marc J. Randazza | Apr 17, 2009 10:29:25 AM

Yankee Stadium (at least the old one) is owned by NYC. There are several state-action issues floating around here; I have not had a chance to fully digest the complaint, but will try to write about it next week. But they are: 1) Whether the Yankees have become state actors by virtue of their usage of the publicly owned ballpark; 2) Capeau was removed by two armed uniformed NYPD officer working security pursuant to an NYPD program that details officers for security at private events such as sporting events; 3) the City itself (as owner and controller of that detail program) is a named defendant.

Like I said, a lot there--I hope to write more in a couple of days.

Posted by: Howard Wasserman | Apr 17, 2009 9:23:15 AM

I'm certainly against any form of "forced patriotism," and I emotionally agree with the plaintiff. Unfortunately, I fear that there may be some weaknesses in his case.

Isn't Yankee Stadium private property? I know it was, in part, paid for with public funds. However, can't Steinbrenner require everyone to wear a blue bucket on their head throughout the whole game, if he wants? It might be within my civil rights to wear a Borat thong, but if a restaurant wants to say "we're not serving you unless you put on a jacket," then don't they have that right?

What of the fact that this guy was certainly on notice of the policy. Everyone knows that the Yankees have this forced jingoism policy. You buy your ticket to the game subject to the rules of the park. If you are disruptive, you're out. If you drink too much, you're out. If you try and bring in a knife or a gun, you're out. Why can't a private property owner have this stupid rule too?

Trust me, I WANT the guy to win. If there are two things I hate, they are faux patriotism rituals and the New York Yankees. I just fear that this guy has some serious issues in this case that he's going to have a lot of trouble getting past.

Posted by: Marc J. Randazza | Apr 17, 2009 7:09:42 AM

He did -- that was one of several tort claims in the case. But he also alleges that he has a general objection to secular rituals and thus wanted to leave, so I think there is a genuine expression issue here.

Posted by: Howard Wasserman | Apr 16, 2009 11:13:08 AM

Interesting how this dispute has to be framed in terms of dissent from the expression of patriotism, in order to fit it in the purview of the first amendment. This is not so much wrong, as it is a bit artificial. I'd imagine the plaintiff doesn't feel very strongly about that song one way or another, he just wanted to go to the restroom. Wouldn't it be more obvious to sue under false imprisonment?

Posted by: Martinned | Apr 16, 2009 9:55:58 AM

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