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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.


Prof. Wasserman:

Regarding offensive chants at professional sports events (leaving aside state university sporting events) that are held at publicly owned stadiums, does the First Amendment still apply if the government rents the facility to the team, which provides its own security and sets its own rules. I would think it does not. Therefore, cannot leagues and individual teams adequately police this, as the Europeans are doing by having UEFA and FIFA punish teams or countries rather than relying on governments to police this activity.

Anonymous PK -- 10/10/2006 3:43 PM  

I spend about 1/3 of the Pittsburgh article on this and it is the major open question. I argue, in essence, that the team is "converted" into a state actor, at least for purposes of operating the stadium, under a number of different "state action" tests that courts use. The key is the close relationship between the government that builds/owns the stadium and the team--teams demand the stadiums because they want the revenue and cities and states build them because they want to keep the team in town and because they hope to reap economic, social, and symbolic benefit from keeping the team around. This close relationship between public and private has the effect of making the team and government "joint actors", both subject to First Amendment limitations.

Note, by the way, that this is not even issue in Europe, where private actors as well as governments are bound by First Amendment principles. State action is a U.S. fetish

Blogger Howard Wasserman -- 10/10/2006 4:31 PM  

I believe there's a recent district court opinion re: validity of searches under the 4th Amendment at Buccaneers games. Since these seems to be more of a hot button issue, the state action question may well be decided in that context.

Anonymous PK -- 10/10/2006 5:56 PM  

That actually was an easy case for state action--a public entity (the stadium authority) owned and operated the stadium, provided personnel, and made all the rules. It agreed to follow NFL rules regarding searches, which made the NFL rules government rules by incorporation.

Blogger Howard Wasserman -- 10/10/2006 6:13 PM  

While I agree that the law and constitutions should decide these cases, I think that European or Croatian (I'm not sure if the Croats are willing to place sanctions on their own team) officials are simply embarrassed by their fans. European League officials are looking for someone to be held accountable, and they find that the Croatian team should be held accountable because holding anyone else accountable would either be unrealistic or would not accomplish anything. I think that they feel if they let this go without action that they will be ridiculed and condemned by different organizations.

Your example/comparison using a popular American sport definitely puts it into perspective.

Blogger WMUpsci_student -- 10/10/2006 11:06 PM  

In fact, a team is not guilty for fans behaviour. But it is widely used practice to punish teams for fans behaviour. I can't say is this practice right or wrong. For me it's very controversial question.

Blogger Olga B. -- 10/11/2006 3:01 AM  


Regarding that last passage whereby you state that rules governing expression in the stands should be no different than expression occurring in any other expressive forum: isn't that dimishing the social impact of sports events? I can see the legal argument sustaining such an approach, but shouldn't the legal assessment of any issue be based on the material impact or potential material impact arising thereof?


Punishing the individuals remains a highly unattainable end. The fans care, above all, about their team (even if in a twisted way). It is controversial but perhaps the one way to secure any sort of relevant "punishment"?

Anonymous Luis Cassiano -- 10/11/2006 6:00 AM  


Actually, I think it enhances the social impact of sporting events by elevating them as forums to the equivalent of public streets and parks--the historically traditional forums where "time out of mind" public expression has occurred. I think it recogizes sports and sporting events as important places/events at which expression is important.

Blogger Howard Wasserman -- 10/11/2006 7:12 AM  

Luis, I fully agree with you. But fans not always change their behavior after their favorite team was penalized. Yes, this way helps. But I think that every situation has at least two (or more) solutions.

Blogger Olga B. -- 10/11/2006 4:03 PM  

Professor Wasserman - thanks for posting this.

Even if the image of fans arrayed in a swastika is protected, what if they were heckling players? Many fans try to provoke players at sporting events, and often resort to racial slurs, attacks on the player and the player's family, and even physical threats (the recent Philly/Dallas game is a good example).

Even though we accept heckling as a part of sports, could the combination of such a symbol and aggressive heckling, even though heckling is part and parcel of many fans' identities, be outside the bounds of free speech?

Blogger Satchmo -- 10/11/2006 7:39 PM  


Only if it is the sort of up-close, face-to-face-, directed exchange that can cross-over into one of those very narrow unprotected categories. Failing that, I think what you describe is fair game and fully protected, at least for the fans screaming at the top of their lungs in the nosebleed seats.

Blogger Howard Wasserman -- 10/11/2006 8:21 PM  

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