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Friday, May 18, 2007
Yankee Stadium, God Bless America, and the First Amendment

Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during God Bless America during the Seventh Inning Stretch. I first discussed this issue here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments) here and here.

In the interest of shameless self-promotion: I have written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):

Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,” counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America” or may turn their backs to the flag during the anthem. Fans even may jeer one nation’s anthem as it is being played as protest against that nation or its policies.

At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.

There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.

State Action or Action Under Color of Law

Are the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.

The strongest argument for state action is Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).

The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact, Burton was the basis for a district court holding in Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.

A second argument is based on the more-recent decision in Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with Brentwood may be how long the opinion survives--the Supreme Court this term heard oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.

First Amendment Principles

The next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?


Am I reading this right?

"Chains block the aisles and ushers face the crowd and order people to stop moving while the song is played."

I appreciate the significance of the First Amendment issue (and appreciate your thorough treatment of the issue here), but is there something else here, too? Would a person with a weak bladder be prevented--by chains and ushers--from accessing a restroom? Is forcing people against their will to remain where they are, whether a violation of First Amendment rights or not, also of questionable legality in other ways?

Blogger Pacifist Viking -- 5/19/2007 9:28 PM  

The Times story says they make exceptions for emergencies; I suppose really needing to use the restroom would qualify. But, as several commenters on the first post stated, in some circumstances this could cross the line into the tort of false imprisonment (which would not require that the Yankees be state actors).

Blogger Howard Wasserman -- 5/20/2007 7:50 AM  

Would you mind commenting on how the Yankees can/can't void Giambi's contract in one of your future posts? Seems like a good way for owners to keep players from telling the truth.

Anonymous cj -- 5/20/2007 8:33 PM  

Is this any different than keeping fans from walking into the stadium while the game is being played. Whether it is for Patriotism or not, they obviously do not want any traffic in the aisles. They do this periodically to allow for no traffic, or to protect the view from people.

Anonymous Anonymous -- 5/21/2007 12:39 AM  


Interesting analogy. And it might work to make the GBA policy seem neutral. I don't buy the connection for a couple of reasons:

1) Any policies prohibiting people from going to their seats during play are rarely, if ever, enforced--at least in baseball, football, and basketball (only in tennis, in my experience). People routinely walk to their seats during play, climbing across their neighbors (and obstructing views) in the process. There is informal custom among serious fans to wait, but I never have seen it enforced by stadium personnel.

2) Even if such a policy is in place, it never is enforced in the other direction--I have never seen a situation in which people were required to remain in or prohibited from leaving their seats during play. That is what the Yankees are doing-stopping people who want to leave during the song from doing so.

3) There obviously is an obstruction created by fans walking across the aisle while other fans are seated and trying to watch the game. There is far less obstruction when someone walks out while other fans are standing and not actually watching anything on the field.

4) Related to # 4: The only thing prohibited is people walking out the tunnel and out of the seating area. It seems that they can walk across the row, up the aisle, and into the corridor--all of which (as I said in the post) is probably more obstructing than simply walking out of the seating area and to the Sabrett stand.

5) Tying it all together: It seems that the only time the Yankees are concerned with "keeping the aisles clear" is during GBA and Star Spangled Banner. No other time during the game. This suggests that the reason for enforcing the policy at those times is not about the neutral goal of keeping the aisles clear--it is about not liking the message sent by those who get up at those times.

Blogger Howard Wasserman -- 5/21/2007 8:58 PM  

Howard, just want to say that I think you've been doing a great job of following this story, and I hope that you spin it into an article!

Blogger gorjus -- 5/22/2007 10:38 AM  

I'd be shocked if a court would find state action here. Burton was a desegregation case, and all kinds of rules were bent (mangled) in those cases.

Anonymous Anonymous -- 5/22/2007 10:53 AM  


True. That is why many have suggested (and I noted the point in the post) that Burton no longer is a meaningful or impactful case. On the other hand, the one area in which statutes have not provided rights as against private actors is free speech. So perhaps that would lead courts to expand state action in that context.

Here is what I said about the point in my article (foototes omitted):

During the Civil Rights Era of the 1960s, the Supreme Court expanded
the concept of state action,holding that, under certain circumstances, a sufficient connection between government and an ostensibly private entity converted the latter into a state actor, subjecting its conduct to constitutional limitations. This expansion of state action enabled the Supreme Court to expand the reach of the Fourteenth Amendment to halt racial discrimination by ostensibly private actors in the Jim Crow South. These cases arguably were mooted by the Civil Rights Act of 1964, which expressly prohibited
racial discrimination by non-state actors in public accommodations.
But similar statutory protections do not exist for individual speech rights, which remain subject to private abridgement.

Blogger Howard Wasserman -- 5/22/2007 12:12 PM  

I've never noticed anyone being asked not to leave/go no matter where I've sat. While I'd rather hear another version of the song most of the time, or maybe Ray Charles' America the Beautiful, this reaction seems overblown to something I've never actually witnessed (I go to a handful of games each season, sometimes a little more).

Anonymous David -- 5/23/2007 2:34 PM  

Excellent coverage of the situation. I thought I might I offer some non-legal thoughts....

The Yankees are obviously using the 9/11 tragedy and the subsequent addition of the GBA during the seventh inning stretch to maintain the highest expression of not patriotism, but instead of woe is me, the beaten-to-death horse of "NY suffered the most so we all need to never ever ever forget" horseshit. Add in the Guliani and the resumption of the World Series and the NYFD and NYPD logos on the uniforms, (all inspirational and touching at the time); and we've got the Yankees demanding that we stand in reverence; whether or not we want to, feel the need to, od agree with said reverence in the first place.

It is a heavy-handed, overblown, frankly stupid way to try and make yourself look like you care more than anyone else. The seventh inning stretch GBA already needs to go away. We ALREADY sing the national anthem at the start of the game. What's next, the pitcher saying the pledge of the allegiance before each pitch? Enough already.

We get it, NY had a tough time. The Yankees appreciate that, A LOT. Forcing fans to sit through 81 GBA's in a season is beyond absurd. If it's legal, then the law needs to be changed.

I'll tell you what, I'll be the test case if they try and stop me from going to get a hot dog.

Anonymous John J Perricone -- 5/27/2007 2:40 AM  

I was struck by your phrase, "they only are trying to keep non-participating fans from disrupting those who do want to participate in the ritual."

I would rephrase the second clause.

They are NOT trying to keep participating fans from disrupting-those who do NOT want to participate in the ritual.

They are confining the non-participants, and leaving them vulnerable to abuse.

Last night my husband and I, and a few others, were subjected to screams, curses, and a general verbal assault by the "ritual participants"--because we remained seated during the "prayer" for military who died "to defend our way of life." I was scared, and I didn't even know about the chained exits.

Anonymous Anonymous -- 6/14/2007 1:52 PM  

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