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Thursday, June 07, 2007
Speechless in Seattle

The Seattle Weekly reports about new policies governing fan cheering at Seattle's Safeco Field. (H/T: Deadspin). According to the story, Safeco Field ushers can issue fans "Red Cards," which warn fans that their behavior has crossed the line and that continued misbehavior will result in removal from the ballpark. Among the infractions for which Red Cards can issue are 1) Foul or abusive language or obscene gestures; 2) Obscene or indecent clothing; and 3) Fighting, taunting, or making threatening remarks or gestures.

The article does not mention the First Amendment. But these fan-conduct policies have been the major focus for my arguments about the constitutional protection for "cheering speech." Except for perhaps "threatening remarks" (assuming they satisfy the fairly narrow definition of "true threats," which they usually will not), everything enumerated on the Red Cards as "unacceptable" is, in the vast majority of cases, constitutionally protected. A person cannot be punished for using foul language (whether orally or in writing or on clothing), for wearing indecent clothing (whatever that means), or for heckling a ballplayer on the field hundreds of feet away. It seems ridiculous to punish fans, who frequently are exhorted to "get loud" in support of the team, for being "too loud." And where is the line between "criticizing" players or umps (which has to be permissible) from "heckling" them? The Mariners essentially are trying to enforce civility norms in a public space--something that the First Amendment does not permit.

The problem, of course, is that the Mariners are acting as a private entity, not subject to the limits of the First Amendment. But Safeco Field is another publicly owned/publicly financed park, built for the exclusive long-term use of the Mariners and containing highly favorable and beneficial lease terms. For many of the reasons discussed as to the Yankees being state actors , I would argue (although no courts has yet agreed with me) that the Mariners (and other teams in similar situations) are state actors in operating Safeco Field and regulating fan expression in the grandstand. With that move made, the fan code of conduct should ripe for challenge by any fans removed from the ballpark for engaging in a range of cheering speech that is prohibited by these codes.

It is worth noting that the Mariners are the ones who started all of this. The article quotes the team's vice president for ballpark operations bragging about the Mariners being among the first teams to develop a fan conduct code. And the Mariners brought the issue of fan expression to the fore in 2002, when the team tried to ban fans wearing "Yankees Suck" t-shirts. Actually, those efforts caused such a backlash that the team rescinded the rule. It is thus surprising (and disappointing) that the Mariners would revise and even expand similarly constitutionally problematic rules.

Of course, the continued existence of these policies means I always have something to write about.


Can an entity be a state actor for one purpose but not another? In other words, if using a publicly-financed stadium makes you a state actor, are all of your activities subject to constitutional rules, or just some of them. If the latter, how close must the "fit" be between the activity and the relationship that gives rise to state action? If the former, wouldn't that forbid a team from disciplining an athlete for engaging in activity protected by the First Amendment, e.g., John Rocker?

Anonymous Anonymous -- 6/08/2007 1:40 PM  

I think Howard is arguing that the Mariners only in their capacity as proprietors of the stadium are state actors. The Mariners wouldn't be state actors when just acting as a sports team disciplining a player in the John Rocker situation.

Anonymous Anonymous -- 6/08/2007 2:10 PM  

I believe an entity can be a state actor (more precisely, can act under color of law) for some purposes and not for others. In fact, most of the tests for state action/under color focus on the connection between the government and the private entity's *conduct* at issue. My under-color arguments all focus on the import of the ballpark to the team, so the government connection is there when regulating what occurs in the stands at the park. The connection is less obvious in, for example, the team's hiring decisions.

One of the controversial aspects of the "entwinement test" recognized in Brentwood I is that it focused on the connection between the government and the other entity, not the entity's specific conduct. So it seemed to suggest that the high school athletic authority became a state actor for *all* purposes. That was a major point in the arguments earlier this term to overturn that decision.

In United Church of Christ v. Gateway Econ. Dev., the Sixth Circuit held that the Gateway Economic Development Corp., a public/private partnership that owns Jacobs Field, acted under color of law in controlling expression on the sidewalks outside the ballpark (although the court adopted a rationale with which I disagree). In its opinion, the court specifically refused to comment on whether Gateway was a state actor for other purposes, such as regulating its employees' speech.

Blogger Howard Wasserman -- 6/08/2007 3:43 PM  

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