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Monday, April 20, 2009

State action and the Yankees lawsuit

In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America." The harder part (at least at professional sporting events) has been whether the First Amendment is even in play when the controlling actor--the teams--are not obviously state actors. The lawsuit by the fan who was kicked out of Yankee Stadium in 2008 spends a lot of time in the Complaint trying to deal with, and overcome, that problem.

Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.

Let's consider each in turn:

The Yankees:

Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.

Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA

Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).

The Officers

The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.

The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.

New York City and Commissioner Kelly

State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.

Posted by Howard Wasserman on April 20, 2009 at 07:05 AM in Howard Wasserman, Sports | Permalink


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I'm still not persuaded. I'm still open minded, but not persuaded.

Posted by: Marc J. Randazza | Apr 20, 2009 10:24:20 AM

Given that we're throwing everything but the kitchen sink at this, wouldn't it be possible to establish a "symbiotic relationship" by pointing to 15 USC 26b? Panem et circenses, etc.

Posted by: Martinned | Apr 20, 2009 9:26:08 AM

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