Sports Law Blog
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Tuesday, October 10, 2006
Hate Speech as Cheering Speech
Alert Reader Will Li points me to this article in The Sun containing this picture that is worth 1000 words. Anyone else see the irony in this occurring at a "friendly?"
So is this constitutionally protected "cheering speech" or something different? According to the story, Croatia could be kicked out of the 2008 European soccer tournament if their fans (who have a history of presenting racist taunts and symbols in the stands) continue to pull stunts like this one.
But the law of the European Union is far more restrictive on the display of racist symbols, especially swastikas (given European history) than is the law under the First Amendment.
In general, racist symbols are constitutionally protected under the First Amendment--remember that Nazis can parade through the streets of a largely Jewish suburb waving swastika banners--unless and until they cross the lines into direct "true threats" (words placing the listener in fear of imminent physical harm) or targeted "fighting words" (words that, by their very nature, would provoke a reasonable person to respond with immediate physical violence). For that to happen, however, expression must be directed at or addressed to a particular person or persons, usually in some close-up, face-to-face, confrontational exchange. Otherwise, it simply is symbolic expression that causes anger, offense, or even intimidation--but a listener's anger or offense is not a basis for restricting speech.
It is hard to tell from the photo, but it looks like these fans are pretty far from the action and pretty far from other fans, making it unlikely there is any face-to-face, directed encounter going on. In my article on the subject, I offered the hypothetical of a KKK protest at Shea Stadium during Jackie Robinson Day, featuring Confederate flags and signs remembering the "good old days" of segregated baseball. Offensive as that might be, I think that would be protected, especially in the political context of a day to honor Jackie Robinson. It seems to me the swastika is a difference in degree--it is more offensive, more intimidating--not in kind.
Much of my argument regarding speech at sporting events turns on the notion that the rules governing expression in the stands should be no different than expression occurring in any other expressive forum. So if this symbol would be protected on a stree parade, it is protected at a soccer (nee, football) match.