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?

 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).

 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.

 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 -- 5/21/2007 12:39 AM  

Anonymous:

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.

 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!

 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 -- 5/22/2007 10:53 AM  

Anonymous:

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.

 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).

 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.

 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 -- 6/14/2007 1:52 PM  

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