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Wednesday, September 27, 2017

Sports and Speech: From the ridiculous to the sublime

I have not weighed in on the craziness about protests in the NFL, because so much of this (from both sides) is more noise than signal. For now, I want to flag to recent pieces:

1) Jonathan Eig writes that the public hated Muhammad Ali when he was speaking (and acting) out against the war at the time he was the loudest and angriest; it was only after he became harmless (because of his medical condition) and less adversarial in his views that he became beloved. The same is happening with Colin Kaepernick, to a limited extent. As some people praise him for starting a movement, he remains out of a job. And the message he was trying to get across--inequality and systemic mistreatment of African Americans--has been replaced by a league-approved anodyne message of "unity" and objection to "division."* Perhaps Kaepernick will get a job, although I doubt it. More likely, he will be praised 15 years from now, when he no longer can play football (and have a high profile to make an expressive effect), for standing up for his beliefs.

[*] Hint: If the only goal was to be "united" and not "divided," we would not need a First Amendment.

2) This story about a fan ejected from Yankee Stadium for shouting the location of pitches in Spanish. The umpire removed him for "cheating" by tipping the Yankee batters to the location of pitches. This is beyond stupid. First, the idea that he is remotely helping the batter to hit a 95-mph pitch is nonsense--the pitch is in the catcher's glove before the batter would hear anything. Second, there are 40,000 fans shouting the location of pitches--it is what fans do and are expected to do.

To the extent there is a lawsuit, I am curious how the status of current Yankee Stadium is resolved. Old Yankee Stadium (the one used, pre- or post-renovation, from 1923-2008) was owned by New York City and there were some good arguments that, in using the stadium, the Yankees acted under color and became bound by the First Amendment. A district court held that in 1978, in a lawsuit brought by female sportswriters who were barred from the lockerrooms during the 1976 World Series. And some good arguments were pled in a lawsuit filed by a fan who had been removed for failing to stand for "God Bless America," but the case settled. Public funds paid for more than 50 % of construction of the current stadium, although I do not know the details about ownership and control.

Posted by Howard Wasserman on September 27, 2017 at 02:09 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


Howard, thanks for the response. You bring up a good point, and I think this is where a lot is lost in the debate.

The primary job of a NFL backup qb isn't to be a *good* quarterback, because if all goes well the backup will never see the field.

The primary job of the NFL backup is to help the starting qb--to basically be a coach that can play if absolutely necessary. That means understanding the offense intimately; being very good at understanding different defenses, and communicating that to the qb.

That is why NFL teams routinely go with what appears to be sub-standard backups (for example: Dallas' backup Kellen Moore). They aren't going with the qb because he's good at being a qb (if that was the case, he'd be starting somewhere). They go with him because he brings a deep knowledge of the offense and compliments the starting qb somewhere.

This is where Kaepernick is a bit unlucky. He didn't have great stability with offensive coordinators, and tended to play in run-and-gun offenses. His danger was in his ability to run the option. As a qb ages, that danger diminishes. In addition, the run-and-gun offenses--so popular when Harbaugh, Kelly (Kaepernick's two pro coaches) and other college coaches came to the NFL--have fallen by the wayside now.

This means that, on any new team, Kaepernick has to re-learn the offense. And not just a new offense, but a completely different scheme than he ever played in. And he has to do this taking backup reps--which is to say, none at all outside of the preseason. This means that Kaepernick already can't contribute to the #1 responsibility of a backup qb: understanding the offense intimately.

I have no idea what Kaepernick's diagnostic skills are with defenses, but the run-and-gun offense typically requires the qb to key on only one or two players (usually the ends and the safety, which is why it's so favored in college) rather than read an entire defense. What one can assume, though, is that these skills are not fully developed and the different coaches that tried him out this year felt they weren't developed enough. If that's the case, then Kaepernick can't contribute to the #2 responsibility of a backup qb.

Finally, youth wins in the NFL. It's cheaper and more coachable. Poor mechanics can be worked out of a 23-year-old. In a 30-year-old like Kaepernick, the habits are permanent.

All that to say, Kaepernick's throwing ability is a false measurement when arguing he should have a job, because that is not the primary skill needed by a backup qb.

Posted by: YesterdayIKilledAMammoth | Sep 28, 2017 4:29:01 PM

"I am not sure how to distinguish what this fan was doing from what thousands of other fans were screaming. This one guy could not have been that distracting to the umpire, with all the rest of the noise in the ballpark. "

The issue is not that he was distracting the umpire; the issue is that he was tipping the location of pitches. And, it is very easy to distinguish what this fan was doing, because it is quite obvious that the umpire, and hence the batter, could clearly hear what he was saying - unlike the vast majority of the fans.

That doesn't mean that his speech was unprotected, but the implicit claim that the umpire was acting arbitrarily, or that his removal was "beyond stupid." He was doing something that players consider to be at least borderline cheating.

Posted by: gdanning | Sep 28, 2017 11:18:19 AM

I have written before about the nature of ballpark stands as public forums for what I call "cheering speech," which would include what this fan was doing. I am not sure how to distinguish what this fan was doing from what thousands of other fans were screaming. This one guy could not have been that distracting to the umpire, with all the rest of the noise in the ballpark. The stands behind home plate are a good distance away.

I am not sure I would classify Kaepernick as a run-first quarterback. Her certainly is as capable of throwing the ball as the horrible passers who have been given jobs. No, he would not be starting. But he is better than the second-strong QBs on most teams.

No athlete is going to prevail in an Ali comparison, because Ali was subject to criminal penalties for his beliefs, something that is not going to happen to most other people protesting most other issues. I'm not sure what would be the equivalent for Kaepernick.

Posted by: Howard Wasserman | Sep 27, 2017 8:57:30 PM

I doubt Kaepernick will be praised or celebrated. Muhammad Ali protested against a definite thing (the Vietnam war, not war in general) with a definite call to action (end the Vietnam war, not end all wars).

Kaep's protest, on the other hand, is against a vague "social injustice"--which means you're protesting just about every society ever, and you can never win because is anybody ever going to be able to say a society is perfectly just? Doubtful.

Now, one may argue that Kaep was protesting police targeting blacks. Ok, but the explosion of citizen journalism brought that to national attention--not Kaep's protest. In addition, Ali did his part in ending the Vietnam War--he refused to go. He didn't just say, "I don't support the war".

It's difficult to find similar action on either Kaep's part or any other player's. Kaep has started camps to help minority children understand their rights and interact with the police, but those issues aren't really the cause of police shootings. The fight that Kaep is leading will be won in community halls, courtrooms, and fights against police unions.

It'll be nasty. Ali showed he was willing to stand up to that kind of nastiness when he refused to go into the army. Neither Kaep or the other players have shown the same willingness.

On a final note, Ali was the undisputed greatest fighter when he lost everything. Let's not pretend Kaep even broke into the top 10 NFL qbs. You may be able to argue that Kaep has been kept out of a backup job, but it's just as likely that he would be out of a job regardless as the NFL transitions away from its love affair with run-first qbs.

Posted by: YesterdayIKilledAMammoth | Sep 27, 2017 6:27:15 PM

Derek: It's not against the rules of baseball for anyone to steal signs or tip pitches. The umpires have broad discretion to have fans ejected for pretty much any reason they want, and that's what happened here.

Posted by: Ian Bartrum | Sep 27, 2017 5:22:36 PM

In the heat of the moment is different than years later in that respect. 1990 over 1970 etc. The "hero when harmless" sentiment is probably also general in nature. As people age and are no longer as active, they seem more harmless. Mental and physical infirmity would help there too. But, it isn't just for black activists or something. It seems to me a rather general thing.

As to the second, the person wasn't merely one of 40K fans, including people in the upper deck. He was "sitting behind home plate." Seems rather inane but it might have been distracting to the umpire or whatever.

If the stadium is covered by the 1A is an interesting question, but even if it was, it would be as inane to not allow a neutral rule stopping fans behind home plate from doing something like that.

Posted by: Joe | Sep 27, 2017 5:07:01 PM


Are you saying that the law does (or ought to) allow fans to do this? Or are you saying that the rules of the game ought to allow it?

Regarding the latter, I don't have many strong feelings about it in a stadium with thousands of people and little chance of actually impacting the game. But, I don't think there's a problem with generally having a rule against fans interfere with the game. I wouldn't want to allow a spectator to shout out moves in a chess competition. But perhaps the baseball case falls into a sort of de minimis sort of interference that we ought to tolerate.

As for the law, I don't think any sort of public forum or free speech argument would prevail here. The fan has no more right to try to interfere with the game through speech than an audience member in a publicly owned theater has the right to shout "What's that smell?!" at the start of a production of Hamlet.

Posted by: Derek Tokaz | Sep 27, 2017 4:13:51 PM

Anon: Thanks for the correction, which might explain some things. Still, the point stands: Fans absolutely should be able to do this.

Posted by: Howard Wasserman | Sep 27, 2017 2:53:43 PM

To be fair on (2), as I read the story, it is ambiguous whether he was yelling the location after the fact, or before the pitch (i.e., based on where the catcher was setting up). The latter of which I think batters typically refrain from looking at while in the box (out of propriety or for fear of not having eyes on the pitch, although lord knows that a baserunner can easily tip him off as to setup location).

Posted by: anon | Sep 27, 2017 2:51:58 PM


It turns out that from 2011-2014, the Department of Defense spent $5.4 million in contracts with 14 NFL teams for flag ceremonies. The National Guard got in on the action too, and gave $6.7 million to the NFL for the same kind of thing from 2013 to 2015.

…Before 2009, football players standing for the national anthem wasn’t even a thing. The teams stayed in the locker room until after “and the hoooome of the braaaave,” and then ran onto the field. No one was offended, and no one was on cable news eliciting tears from disrespected military families. But then, the Department of Defense and the National Guard got involved. They began to pay the NFL millions of dollars to have ostentatious flag ceremonies before games.

Posted by: Exceptionally evil | Sep 27, 2017 2:34:20 PM

They didn't kneel during the British Anthem because the Brits were smart enough not to enslave blacks, never to colonize another country, and to always treat the Irish and Scottish as equal fellow human beings. America is the only country with a history of racism and xenophobia.

Posted by: Exceptionally evil | Sep 27, 2017 2:30:46 PM

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