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Thursday, May 04, 2017

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Is an FCC investigation "chilling speech"?


There is no doubt that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. Responsibility for the proper conduct of investigations rests, of course, upon the legislature itself. If that assembly chooses to authorize inquiries on its behalf by a legislatively created committee, that basic responsibility carries forward to include the duty of adequate supervision of the actions of the committee. This safeguard can be nullified when a committee is invested with a broad and ill-defined jurisdiction. The authorizing resolution thus becomes especially significant in that it reveals the amount of discretion that has been conferred upon the committee.

Posted by: SweezyNewHamp | May 7, 2017 7:29:48 PM

Is saying the N-word at a ballgame really more intrusive than telling people what to wear?

Posted by: Boggs | May 5, 2017 12:08:52 AM

Snyder did not involve emotional distress the way a student not wearing a uniform would distress a union worker.

Posted by: Phelps | May 4, 2017 9:24:31 PM

"in Alvarez or Snyder."

One was a plurality opinion with the deciding vote using a less strict test to determine the question of a politician lying.

The other specifically noted the open-ended nature of the restriction, avoiding closer questions, involving a protest on the streets.

Not really seeing those a great refutation of Sam's "common sense" suggestion.

Posted by: Joe | May 4, 2017 9:16:40 PM

"baseball stands are already a place open to fan expression"

It isn't as "open" as an actual park or the streets.

There can be specific "manner" restrictions, including involving relating to other fans, particularly because minors are present. This would, I think, include stopping various types of "slurs," though there might be a R.A.V. v. St. Paul problem arising if only racial slurs of a certain type are targeted.

If a public high school cannot enforce a policy against use of certain slurs in the stands because "expression" exists there, it would surprise me.

"people's reactions"

If the rule is in place, it can be enforced when people notify the people in charge that it is being violated. To quote the original post: "for using a racial slur in a conversation with another fan." Not "because said fan was upset," full stop.

But, if you want the Red Sox to silence more fans by targeting more slurs, some might agree with you.

Posted by: Joe | May 4, 2017 9:11:54 PM

I'll give you the benefit of the doubt, but it's only a loan, i'm gonna need it back

Posted by: AgreeToDisagree | May 4, 2017 9:06:47 PM

Perhaps. But "don't be a dick" didn't carry the day in Alvarez or Snyder. So I wonder why it would carry the day here.

Posted by: Howard Wasserman | May 4, 2017 8:59:55 PM

OK, let's try this again: The issue of school uniforms was raised in a comment. I responded that public colleges and universities (such as LSU, who this post was about) would not be able to impose uniform policies. That's it. School uniforms in high school have been declared constitutionally valid and nothing in the post suggests otherwise.

As for Barnette, that is a non-seqiutur. No one said the First Amendment does not apply to minors. But Barnette aside, student speech in school--including uniforms and t-shirts--is subject to greater limitations. But since nothing is happening in non-college schools, none of that matters to this discussion.

Posted by: Howard Wasserman | May 4, 2017 8:57:52 PM

"There's a time and place" won't work because T/P/M restrictions have to be ocntent-neutral and not based on people's reactions to what is being said. - HW

But as I said, doctrine is merely rationalization, given to support intuition, on a question like this. Like it or not, that is true in the courts of this real world. If necessary, courts would adopt a new doctrine: "jeez, people came to enjoy the ball game/symphony/prize chickens, don't be a dick."

Posted by: Sam | May 4, 2017 8:56:12 PM

Also, read Tinker. You're the real threat to free speech, not Gorsuch.

Posted by: MinorGobitis | May 4, 2017 8:56:07 PM

"I was talking about college. Learn to read!"

The first amendment applies to minors, read Barnette!

Posted by: MinorGobitis | May 4, 2017 8:53:50 PM

For the Ninth Circuit on why school uniforms are legal see


Jacobs v. Clark County (2008)

Posted by: NeverHillary | May 4, 2017 8:50:49 PM

I was talking about college. Learn to read!

Posted by: Howard Wasserman | May 4, 2017 8:50:25 PM

"A public school that tried to impose a dress code on its students would run into some First Amendment problems."

No, it wouldn't, learn the law!


Littlefield v. Forney Independent School District

also see Bill Clinton (or why we voted against Hillary)


"I challenge all our schools to teach character education, to teach good values and good citizenship. And if it means that teenagers will stop killing each other over designer jackets, then our public schools should be able to require their students to wear school uniforms."

Posted by: NeverHillary | May 4, 2017 8:48:46 PM

"There's a time and place" won't work because T/P/M restrictions have to be ocntent-neutral and not based on people's reactions to what is being said. Maybe the one-to-one nature of the conversation (talking to people individually, rather than talking aloud to the world and whoever hears him) makes a difference. And a lot depends on how we define the forum--in this case, the baseball stands are already a place open to fan expression. So other than content, what was said here is not different than what ordinarily happens in that space.

Posted by: Howard Wasserman | May 4, 2017 8:43:58 PM

Ok fine. Let's imagine a state-owned and state-operated entertainment facility, a civic center concert hall or a fairgrounds. And imagine an attendee who, during symphony intermission or during the show of prize chickens, walks around looking all the white people in the face and saying "You know what? I hate n*****s."

Any reasonable First Amendment doctrine would allow the state operator to kick the guy out. There's a time and a place for everything, and there are times and places where a guy has the legal right to say that, but not by bugging folks at the symphony or the chicken show. All aspects of doctrine are merely rationalizations at this point, but my intuition tells me that the right answer is that the guy can be kicked out.


Posted by: Sam | May 4, 2017 7:28:27 PM

LSU is a public school.

And clothing is protected speech--ask Paul Robert Cohen. School uniform policies are ok b/c high school (and lower) is different than college. A public school that tried to impose a dress code on its students would run into some First Amendment problems.

I amended my post to make explicit what I thought was clear in the original post--I am asking whether the speech would be protected if the state did the same thing.

Posted by: Howard Wasserman | May 4, 2017 5:50:26 PM

"They just want to control what the athletes wear--itself a form of expression--when they speak."

If clothing was protected speech then public and private school uniforms would be banned in all civilized first-world countries under the UN Declaration of Human Rights. Just as private schools cannot violate your right not to be discriminated against or segregated by sex or race, so they cannot violate any of your other fundamental rights either--like speech, freedom from unreasonable searches, etc.

Posted by: CohenBarnette | May 4, 2017 5:29:52 PM

In terms of enforcement of the lifetime ban, probably they're not too concerned about it. I think the main effect is that if he violates the ban and then does something that brings him to the attention of the park's staff, he is now subject to a criminal trespassing charge.

Posted by: Griff | May 4, 2017 1:19:06 PM

Largely without comment? Really?

Like the previous commenter, I do not understand your question "how is this not protected speech?" given your recognition that the matter does not involve state action.

Posted by: Sam | May 4, 2017 1:02:33 PM

"The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But how is this not protected speech?"

If the 1A is "nowhere in play," how is this "protected speech"? I do wonder if it is fully "private" at least for state law purposes.

Do you mean where the 1A is in play, it wouldn't be able to be banned? Okay. A major reason we have a 1A is the idea that the government does not get to ban speech that non-governmental individuals can. So, if a private group wants to not invite any more to their meetings a person who used a racial slur while a six year child was nearby, they could.

I think a lifetime ban is overblown. But, if it's protected speech, the person could not be removed once for saying it. I'm not sure, especially with young children around, if that would appall me in this case. Also, if a person in the audience at a grade school public school football game used a racial epithet would it be wrong to remove that person?


The second matter is quite different than the first in my view. I think the state university was wrong there.

I do wonder how it was an "order" if it was a "request." Is there evidence it will punish those who don't follow their guidance? For instance, if the college requested people to be nice to visitors but some said some rude things, would the college punish those people?

I'm not naive here regarding "suggestions" various people supply in a myriad of cases, but since universities counsel many things that cannot be directly ordered, even that can be taken a tad far.

Posted by: Joe | May 4, 2017 12:36:28 PM

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