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Wednesday, December 06, 2006
 
Welcome Back: Mutombo, Richards, and Racist Cheering Speech

Good evening and thanks to Mike & Co. for inviting me back for another guest stint. Actually, the stint began a couple days ago, but this is the first chance I have had to post something.

There is nothing going on right this minute that is sports-related that peaks my legal interest. So let me backtrack to two pieces of old news: Michael Richards (no link or explanation necessary) and Dikembe Mutomo's heckler (earlier this year, a heckler in the crowd called Mutombo a monkey, causing Mutombo to almost go into the stands after the man and causing the NBA to ban the fan for the remainder of this season).

What do they have to do with one another? They together relate to the problem of racist taunts and chants at sporting events. In writing about fan speech, I suggested that pretty much all heckling and taunting is fair game, as long as it does not cross-over into the narrow category of "fighting words," meaning direct, targeted, close-up, face-to-face insults. For an example of racial speech, I proferred a protest during Jackie Robinson Day at Shea Stadium, in which White Supremacists chanted about "the good old days" of segregated baseball--an example of pure political speech (however offensive). For examples of heckling, I suggested that fans could call players on anything and everything, related to on-field performance, clubhouse problems, and off-field daliances.

But I did not consider the most-blatant example of racial heckling: a fan in the close rows of a small arena shouting a racist epithet at a particular player. And the Richards and Mutombo situations together suggest that as we move from racial/racist political messages into more directed racist taunts, epithets, and name-calling, the analysis gets skewed.

First, consider that most people thought it was OK for Mutombo to almost go into the stands after the heckler, something that probably would not have been tolerated if the fan had called him a non-racist name (compare the reaction to the Texas Rangers' Frank Francisco throwing a chair at hecklers in 2004). Because the insult was racial, the violent reaction was more acceptable.

Second (and this is a lesson I take from the Michael Richards debacle): Racist taunts are perceived not to target and insult only the individual at whom the insult is directed. Rather, racist insults have been "collectivized." That epithet targets and offends everyone of that racial group. And, to some extent, it offends every fair-minded member of society (regardless of race) who hears it uttered. This means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be "fighting words" towards the player under the generally understood definition) might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs

I plan to explore the entire scope of expression in sports in a future (hopefully book-length) project. I think the questio of racist speech, in the sense of epithets, may be its own chapter or article.





3 Comments:

You state: "[T]his means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be 'fighting words' towards the player under the generally understood definition)might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs."

Surely you do not really believe this. If this statement were true, then such words could not ever be said because someone could perceive them to be "fighting words."

Do you even agree with the "fighting words" doctrine? Chaplinsky, after all, is one of the most egregious cases in the U.S. reports!

Anonymous Anonymous -- 12/07/2006 7:42 PM  


Well, I believe it in the descriptive sense that there is a fighting words doctrine. And given the societal reaction (on very different scales) to Richards and to the heckler and the use of racist epithets, I believe in the descriptive sense that a court could hold that where a person shouts an epithet at one person far away (assume for the moment they are divorced from an obvious political message), it might constitute fighting words as to a member of the targeted race standing nearer to the speaker.

Not to say I would agree with such an outcome (I would not); only that it is possible.

Blogger Howard Wasserman -- 12/08/2006 6:56 AM  


But does perception shape the law here, or the other way around? Doesn't recognizing fighting words legitimate physical violence based on only words?

Anonymous Anonymous -- 12/09/2006 11:19 AM  


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