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Sunday, June 10, 2007
The Political Content of Cheering Speech

Is it me or do there seem to be an increasing number of instances of sports teams attempting to control fan cheering speech? I blogged about two recent examples here and here and I wrote at length about it a year ago here.

Now via RSLFM, a blog devoted to the MLS's Real Salt Lake, comes this report (on the home page, click on 6/9/07 to get to the page). Last Thursday, RSL played the People's Republic of China in a friendly at Rice-Eccles Stadium on the campus of the University of Utah. Several fans showed up with flags from Taiwan and Tibet (see photos above) and banners reading "6-4" (a reference to Tienanmen Square). During the second half, several players from the Chinese team refused to continue playing until the flags and fans were removed. Which they were; RSL team officials, apparently assisted by University of Utah campus police, told the fans to put the flags away or get out of the stadium. The RSLFM link has video. A full discussion of the controversy on one local media outlet can be found here; the outrage among some seems to be that the Chinese government is dictating what speech is permitted and what is offensive in Salt Lake City.

Cheering speech is not limited to "insignificant" cheering, jeering, and heckling about the game and players. Rather, cheering speech can, and often does, include pure political expression that is uniquely appropriate at a sporting event. Here, we have a clear protest against the repressive policies of the Chinese government towards Tibet, Taiwan, and its own people. Sports is immersed in political and social overtones in most situations. That is even more so in this instance, given that a representative of the Chinese government was playing in the game. The grandstand should be the ideal forum for this protest and this expression.

This also shows the problem with fan-conduct codes, such as the one in Seattle, that prohibit "taunting." At some level, that is what the fans were doing--flaunting the symbols of China's human rights abuses and heckling the players for their connection to the Chinese government and those policies. Fans were, in part, being provocative in displaying these symbols at the Chinese players, coaches, and officials. But given the overtly political content, the expression of such views cannot be prohibited consistent with the First Amendment.

RSL has defended its decision, arguing that it had the power to remove fans who "disrupted" the game. But the "disruption" resulted from several Chinese players refusing to play until the offending speech and speakers were removed. The general First Amendment principle is that government cannot prohibit speech simply because some listener will be offended or annoyed by that speech--especially when we are in the realm of pure political protest.

Which brings us back to the key issue: State action. Rice-Eccles Stadium is a public facility (owned by the State of Utah), RSL is a private entity renting that facility for what it terms a "private event." In arguing that teams such as the Yankees and Mariners become state actors in operating publicly funded and owned stadium, my paradigm was the typical major-sport situation: The stadium was built specifically for the team's long-term and exclusive or near-exclusive use, with the team given substantial or total control over, and benefits from, the stadium. I did not have in mind the situation here: RSL is not the exclusive or even predominant tenant, it does not appear to be a long-term tenant, and it does not use the stadium on the sort of favorable terms that, for example, the Mariners use Safeco Field. Perhaps this situation represents a middle ground between exclusive use (the Mariners at Safeco Field) and one-time use (a private organization given a one-time permit to hold the annual Gay Pride Parade down city streets), requiring some line-drawing as to where on the state-action line the team should fall along a continuum. This will be a detailed factual inquiry, looking at how often and how long the team uses the stadium and the terms and conditions of that use.

Alternatively, this situation may be more analogous to the private entity with a permit to hold a parade or rally in public spaces--I would not suggest that such a private entity becomes a state actor in all cases.

But this case presents one additional factual wrinkle--apparently, University of Utah police were directly involved in carrying out RSL's demand that the flag-wavers be removed. This fact is important in two respects. First, direct police participation enhances the argument for "entwinement" between the team and the government under Brentwood, since the team's decisions in the management of a public space are being carried out directly by an arm of the government. Second, direct police participation may mean it does not matter whether RSL is a state actor because it was the police (i.e., the State) that carried out the First Amendment violation by removing the fans for their expression, potentially subjecting the officers themselves to First Amendment suit by.

Police involvement also knocks out RSL's argument that this is a private event that RSL can control. This is true for what occurs on the field, but less true for what occurs in the grandstand that has been opened to the public for the specific purpose of engaging in expression. Return to the parade analogy: If a gay rights group obtains a permit to hold the Gay Pride Parade, it can control who participates in the parade and what gets said as part of the parade. But it cannot control what happens along the parade route. I believe there would be a First Amendment violation if the parade organizers insisted that police remove from the crowd an individual carrying a "God Hates Fags" banner.

But let's put to one side state action and whether RSL could be legally liable for removing the fans. Let's consider the broader question of whether a private entity should restrict fan speech in this context, even if it can. The grandstand is a forum designed and opened to the public for cheering speech. A proper respect for the principles and ideals of free expression should command teams to recognize the full range of expression in that category and to allow discussion, particularly the political discussion, in the fan spaces to be "uninhibited, robust, and wide-open."


Thank you for the insight. I was at the game and I am curious to see where this will lead.

Blogger Poqui Moqui -- 6/10/2007 11:22 PM  

How would this square, in a slight tangent, to the FIFA (soccer's international governing body) attempt to eliminate racism in soccer matches? As an example, an Italian referee in an Italian Serie A [top division] match stopped the match when a large banner with a racist statement was displayed from an upper deck. He did not restart the match until the offensive banner was removed.

This is also starting to happen with racist and Nazi chants, where the referee or the players stop the match until the offender(s) is removed from the stadium. Should that happen here--say, during a soccer match, an entire section stands up and does a Nazi salute or shows a banner with a banana on it--could the organizers or the host club do to them what was done in Salt Lake City?

(For those who would wonder why the Banana reference: In a number of matches all over Europe [Spain, eastern Europe, Germany, etc.], black players have been taunted during matches, called "monkeys", and even been showered on one occasion with bananas. Worse, some of these incidents involve home "fans" . . . taunting THEIR OWN TEAM'S PLAYERS.)

Anonymous Anonymous -- 6/11/2007 12:01 AM  

Thank you for writing on this.
I am the one who shot the video, the one who brought the flags into the stadium and made the 6-4 sign that was torn down by a Chinese Official. The RCB decided to do all this; "Defect Here" sign, Mao Masks, Flags, "6-4" sign, "We all cheer for basic human rights" chants to get into the heads of the Chinese players and throw them off their game, thus giving our boys an advantage on the pitch. Notice how we scored a goal not too long after the Chinese stopped play in the 2nd half? Did we score because we had achieved our goal by getting into their heads? Maybe, either way we got the win!
Now one of our members(Donk) decided before the match that he would take the opportunity and make a "political statement." He asked me if he could be the one to raise the Taiwan(ROC) Flag. I had no problem with this and obliged him by letting him be the one to raise that flag. Frank(Colin), another member of The RCB was moved by the stories of the Tibetan fans who joined us at half time. He decided he would use the big Tibet Flag and help them in making a "political statement" thus getting him removed along with the Tibetan fans from the stadium. Which can be seen in the video I shot.
Yes I think the RSL staff along with the RES staff reacted poorly, but they were in over their heads. Each time RSL staff asked us to put away something we complied with their demands. Could they have handled the whole situation better? Of course they could have! If they wanted to keep things neutral they could have asked the Chinese fans to take down their flags, which offended many.
Regardless of the outcome; The RCB supports RSL and we are there to stand behind our team, through victory and strife.

My video:
Some pics:
Donks Blog:
RCB Home:

Blogger Judge -- 6/11/2007 12:05 AM  

I am one of the Tibetans present during the game. We came to see and protest at the game on a last minute because we had just heard about it. So we were not really prepared for a full protest. However some of us decided on a last minute in on the game and at the least hold up our national flag of Tibet as a protest.
Although we were booted off, four of us Tibetans felt that we made a good use of our time. We raised our flags and participated along with the RSL fans. I think we could not have asked more besides I was a little terrified when we were asked to quiet down. Actually, I never thought that we would be asked to shut down or thrown out because we were not throwing bottles or cups at the Chinese team. We were just cheering or distracting the Chinese team like what is done in a NBA basketball game during free throws. It is normal but it didn't seem so on Thursday with the China game.


Anonymous Anonymous -- 6/11/2007 2:10 AM  

I'm not sure the University of Utah police's involvement carries as much weight as you'd like to put upon it. Imagine you're engaged in a First Amendment protected protest inside your local Wal-Mart. Assume further that state law does not protect such protests. Wal-Mart asks you to leave, but you refuse. What is Wal-Mart to do? They call the police, of course, who will then probably arrest you. But the active police involvement does not mean that Wal-Mart's actions were under the color of state law. Similarly, the mere fact that RSL had to call on the police to enforce their property rights does not mean that they were acting under the color of state law.

This analysis, however, assumes that RSL, not the police, were the primary enforcers of the speech codes, and the police were only called once the fans refused to leave. If the police were actually enforcing the rules in the first instance, then there may be state action.

Do you know which of these situations actually occurred?

Anonymous Anonymous -- 6/11/2007 9:03 AM  

I would agree with anonymous direclty above. Simply because the police were called to perform a function the average private civilian can't do, doesn't make RSL a state actor.
I also don't agree with your analogies to the Mariners and the Yankees (however evil they may be). No matter how "favorable" their lease terms may be they are still renting the facility for private functions. If I get tripped by an usher and break my arm who would I sue first (after the usher) the State of Washington or the Seattle Mariners?

Anonymous Tag H. -- 6/11/2007 9:35 AM  

Tag and Anonymous 9:03:

True, calling the police to enforce private preferences on private property does not transform the property owner into a state actor (although there were arguments about this in the Civil Rights Era).

But this is different: This is happening on a public space, in particular a public space (the grandstand) that is made and opened for individual expression. My argument is that a private entity controlling public property itself becomes public because of the connection to the state (whatever the details of that connection turn out to be).

Anonymous 12:01:

The sort of racist taunting you describe is, broadly speaking, protected (although racist speech does bleed into fighting words, a narrow category of unprotected expression, so there is going to be some line-drawing). So, my argument that the flag-wavers here were protected should apply to the racist banner-wavers.

Your bringing this comparison up is telling, because I think it suggests the difficulty of separating racist speech from political speech. The Chinese players doubtless viewed the 6-4 banners or Tibetan flags as at least as being just as offensive as an African-American player might find the banana banner.

Blogger Howard Wasserman -- 6/11/2007 10:28 AM  

In my experience the "police" at such events are often off-duty and being paid by the event sponsor/organizer just to throw another wrinkle in the analysis.

How about the NCAA booting the reporting and taking his credentials in Louisville for live blogging the Super Regional.

Might have been real interesting if the blogging were being done by another employee of the paper off-site watching TV.

Anonymous Anonymous -- 6/11/2007 1:45 PM  

Prof. Wasserman:

Your response raises an interesting question about the extent to which constitutional norms are controlled by the traditional property law. At common law, the RSL would have a property interest -- a leasehold -- that is distinct from the state's (presumably) fee simple interest in the stadium. Thus, the property interest at issue here -- control of the leasehold -- cannot be said to have been "made and opened" for public expression. Rather, it was "made" for the specific purpose of hosting a private event. Of course, this distinction was not controlling in Burton, but for reasons you have previously mentioned, Burton itself is highly suspect.

Stepping back from property law technicalities, I'd like to question your assertion that these types of stadiums are "made and opened for individual expression." By using this phrase I assume you mean they're intended to be open public forums akin to parks and sidewalks (or at least limited public forums). Surely that's not right, however. You concede, after all, that these stadiums (such as Yankee Stadium) are purposely built for a single private tenant. Thus, the purpose seems to be to subsidize private activity, not to create a public forum, just like public housing projects are built for private tenants, not public expression.

The curious nature of your test is illustrated by another hypothetical. Imagine, instead of building the stadium and then entering a long-term (sweetheart?) lease with the tenent (who was identified long before), the state simply gives the team an interest-free loan to construct the stadium, which the team then owns. The use of state resources is functionally the same, yet the very same actions would be under color of state law in one but one the other. Does this make sense?

Anonymous Anonymous -- 6/11/2007 2:02 PM  

This same thing happened last night, 6/10/07, in Commerce City, Colorado when the Chinese team played the Colorado Rapids. Fans were removed because they refused to remove their Tibet flag.

Blogger Bonji -- 6/11/2007 2:50 PM  

The question seems to be the public domain of Rice-Eccles.

If a private entity leases public property for private interests does that effect the speech arguement while the property is being utilized for the private purpose?

Anonymous Anonymous -- 6/11/2007 7:16 PM  

I think what is most disappointing is that they threw out the US citizens/residents instead of the Chinese players. Allowing the Chinese to dictate what we display in our own that is shameful.

Anonymous Anonymous -- 6/11/2007 11:20 PM  

I am one of the protesters at the China vs Rapids game at the brand new Rapids Stadium. I have read the Rapids fan guide (page 8),which says nothing about flag and banners so long as it does not obstruct other spectators. When the Rapids scored their only goal of the game in the first half, we all cheered with Tibetan national flag (banned in Tibet by China). Soon after, the Rapids security warned us that the the flag is not allowed in the Stadium as per their rules. He pretend not to hear me even after repeated request to produce that rule in writing. (see- We were originally at the VIP midfield section and complied with their request over the PA system to relocate at the lower priced sparcily populated section behind the goal post least other spectators feel disturbed. Once we were there, the security pounced on us and called Commerce City Police department who forcefully kicked us out of the stadium gates and threatened us with trespassing if we remain there.
As a tax paying Tibetan American (and Colorado Rapids fan) whose parents have physically experienced brutality from the hands of China in Tibet, I am shocked by the poor handling of our peaceful protest by Rapids organization. It seems there is no escape from the hands of Communist China, not even America - "The land of the Free and the home of the brave"

Anonymous Tenzin -- 6/12/2007 2:46 AM  

Putting the legal questions aside, the best solution for the protesting Tibetans is to try to organize a boycott or RSL. Try to get as many news outlets as possible aware of the fact that RSL refused to allow something as innocent as a peaceful flag-waving at the insistence of the Chinese government (though calling the players agents of the Chinese government might be a bit of a stretch). I'm sure that message will get under many peoples' skin.

Anonymous Anonymous -- 6/12/2007 8:52 AM  

I recall a 14th Amendment case where a Restaurant rented in a building/parking ramp owned by the city government and discriminated against African-Americans. I think the Supreme Court called this state action. This case seems similar.

Anonymous Anonymous -- 6/12/2007 4:39 PM  

An additional wrinkle to the referee stopping the match for the racist banner...

It was not in the US, so the governing law is the European Convention on Human Rights. Notably, the ECHR has much less protection for speakers and much more protection for listeners than the American Constitution.

Blogger Tom -- 6/12/2007 6:08 PM  

This brings to mind two other fan-speech incidents in the U.S. in recent years. One (which has actually been a recurring thing over the past couple of years) was Detroit Lions fans coming to Ford Field with banners and T-shirts demanding the firing of Matt Millen as the team's GM, which the team has frowned upon and tried to suppress, with limited success. (I even saw a "Fire Matt Millen" banner at Joe Louis Arena once during a televised Red Wings game; I don't know what the Red Wings organization thought of it.)

The other was during the World Baseball Classic last year, in a game involving the Cuban national team. A bunch of protestors unfurled a banner denouncing Castro's regime. When Cuban team officials at the game saw the banner and confronted the protestors, the stadium staff intervened and ultimately threw out, believe it or not, the Cuban officials! Needless to say, a far cry from the RSL incident.

Blogger Joshua -- 6/12/2007 10:35 PM  

Oh my word...Mr. Wasserman, please provide a single case where ANYONE who has been thrown out of a stadium for "free speech" has won a civil rights suit? You clearly don't watch many sporting events because I see people tossed for "abusive" language all the time and this is at Soldier Field in Chicago which is a publicly funded facility. Every time I see that happen I hear the cries "oh we are going to sue yo man! Free speech! Free Speech!" but nothing ever comes of it.
Why? Because everyone seems to be able to grasp the following concepts:
1) you have a contract on the back of your ticket that says "if we think you are being an asshole, we can and will toss you"
2) I've rented gazebos in public parks and have successfully had people removed by police when they refuse to leave the space I was PAYING for at said public place. I paid, I control the area. I've then had the same jerk offs threaten to sue. I gladly provided my information and have yet to hear from anyone.
3) Since when have schools been held up to the same standards of free speech as say a public park? That's news to me.

I understand that you are throwing something out there seeing what sticks, but history has shown time and again that RSL was well within their rights to toss people out.

Anonymous Anonymous -- 6/15/2007 7:52 AM  

Anonymous 7:52:

First, you asked for cases. None of these provide the final "plaintiff wins" conclusion. But most cases never reach an adjudicated conclusion in either direction. But several decisions have established the free-speech and state action principles that I am arguing from and that I think would allow recovery.

a) Aubrey v. City of Cincinnati, 815 F. Supp. 1100 (court held that stadium banner policy was vague and overbroad) (And both the team and the City were sued here)

b) United Church of Christ v. Gateway Econ. Dev. Corp. (6th Cir. 2004) (public/private partnership that owns Jacobs Field is state actor in lawsuit by people denied right to speak on sidewalk within stadium grounds)

c) I cannot find the name of the case or what happened to it, but there was a lawsuit back in 2003 or 2004 by some fans who were kicked out of University of Illinois Assembly Hall for holding signs and chanting in protest of Chief Illiniwek. And no one thought that suit was frivolous.

d) Not a stadium case, but Cohen v. California, 403 U.S. 15 (1971) (overturning disturbing-the-peace conviction of man who wore jacket emblazoned with "Fuck the Draft" in a courthouse) establishes the general key free-speech principle as to civility codes in public spaces. As I wrote a couple of years ago, it is inconceivable that Mr. Cohen can wear a jacket with "Fuck the Draft" in a courthouse but a fan cannot wear a "Duke Sucks" t-shirt at a basketball game.

By the way, the biggest problem my argument faces is the state-action hurdle--how to make the team a state actor in operating the stadium. But when a public university operates a public stadium, this becomes easy.

Second, I cannot speak to why people do or do not sue when removed from the stadium. It may have to do with the merits of the suit. Or it may be the person does not want to take on the burden, cost, time, expense, etc. Nor can I speak to why people have or have not followed through on their threats to sue you.

Third, responding to your three principles that cause people not to sue:

a) Regardless of what appears on the back of the ticket, the state and state actors are limited in the contract terms they can impose and enforce. The state cannot define "being an asshole" to include engaging in protected First Amendment activity (such as waving a flag or banner or engaging in political protest) in a space opened for expressive activity. Government cannot prohibit social and political protest and commentary and criticism simply by defining it as "being an asshole" and prohibiting people from doing it. That kind of is the point of the First Amendment. Now, does that protect fans who fight or get in one another's faces or engage in face-to-face confrontations? No. But that is not what was going on at the RSL game. And that is not what is going on in most of cases that, I think, raise free-speech problems.

b) This gets to the analytical key to my argument: I separate the grandstand of the stadium (to which the public has been invited for purposes of engaging in cheering speech and which I argue is a public forum) from the playing field and team areas. Whatever control the team exerts over the playing areas, it should not have the same control over the grandstand overlooking the playing field, where fans are free to engage in protected expression. In other words, the team can keep fans off the field, but cannot control what fans say (within the confines of the First Amendment) in the grandstand.

In my original post, I used the analogy to a group with a permit to parade down the street. The permit gives the group the power to control who participates in the parade and to get police to enforce that; it does not give the group the power to control who stands and watches the parade on the sidewalk, no matter how obnoxious those on the sidewalk may be. Similarly, in your gazebo example: Yes you could have people removed from the area for which you paid. But you could not have people removed from the surrounding areas.

c) Not sure what you mean by schools. Public forums on the grounds of public universities are subject to the same constitutional analysis as public forums in society at large. The University of Utah Police have no more power to remove fans from an on-campus public forum than the Salt Lake City Police do to remove an individual from a city park, assuming all are engaged in protected expression. This again depends on my argument that the stadium grandstand is a public forum. But if so, the rules are the same for public university and for societal forums.

Blogger Howard Wasserman -- 6/15/2007 11:18 PM  

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