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Wednesday, July 11, 2007
 
Fan Consent and the Constitution at the Ballpark

My arguments about fans' speech rights depend on the principle that fans do not, to paraphrase the Court, "shed their constitutional rights" at the stadium entrance. Thus, I have argued in prior posts and comments, it should not matter that teams prints warnings about fan behavior, including speech, on tickets or that fans know in advance that, by voluntarily entering the ballpark, they subject themselves to limits on their speech. Stadium operators cannot condition access to the ballpark on a waiver of constitutional rights.

Well, in Johnston v. Tampa Sports Auth., the United States Court of Appeals for the Eleventh Circuit disagreed with me. (H/T: Howard Bashman's How Appealing; Howard's column argues why the court got it wrong). The court rejected a Fourth Amendment challenge to pat-down searches conducted on all fans entering Tampa's Raymond James Stadium. The court held that the plaintiff, a season-ticket holder, consented to the search by going to the game despite advance notice that he would be subject to a search (the Bucs informed all season-ticket holders of the search policy) and by submitting to the search and entering the stadium, although he did voice an objection to the search.

In lengthy footnote five, the court expressed doubts about whether there could be a constitutional violation, even absent consent. The ticket gave the plaintiff a revocable license to enter the stadium, a personal privilege that could be taken away or burdened by the property owner at any time and for any reason. The court distinguished its 2004 decision in Bourgeois v. Peters, which held that a municipal policy of conducting magnetometer searches on all participants in protest rallies on public streets violated both the First and Fourth Amendments. The Bourgeois court had stated the following:

The ability of protestors [sic] to avoid the searches by declining to participate inthe protest does not alleviate the constitutional infirmity of the City’s search policy; indeed, the very purpose of the unconstitutional conditions doctrine is to prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights. Similarly, the existence of other vehicles through which protestors could voice their disagreement with the SOA (e.g., letters to Congress) does not in any way alleviate the unconstitutional conditions problem.


The Johnston court distinguished Bouregois in footnote five as follows:

The search reviewed by the court in Bourgeois impeded individuals from gathering on a public property–city land outside of the Fort Benning installation–to engage in political protests protected by the First Amendment. . . . While the protestors in Bourgeois had a right to protest on public land that the magnetometer searches burdened impermissibly, Johnston had no parallel right to enter the Stadium for a Buccaneers football game.


This distinction ignores that the stadium grandstand is a so-called designated public forum, opened by the government (the Stadium Authority owns and operates Raymond James Stadium and controls security) for cheering speech. The rules of access to a traditional public forum, such as public sidewalks, and to a designated public forum, such as the grandstand, are the same; government cannot unconstitutionally condition access to either. Nor should it matter that Johnston needed a ticket to get into the stadium. Government often requires people and groups to obtain permits--i.e., tickets--to speak or hold rallies on public streets and sidewalks. Such permitting programs generally are valid, so long as they are neutral, not overly discretionary, and under Bourgeois, do not require the waiver of constitutional rights as a condition of obtaining or using the permit. The identical rules should control the "permitting scheme" of selling tickets to sporting events--neutral (because based on first-come, first-served) and no conditioning obtaining or using on a waiver of constitutional rights.

Of course, this case involved a fan's challenge to the search as a condition of entry, rather than a fan's challenge to removal because of his expression. But the court's general approach--consent and waiver--would, unfortunately, appear to apply regardless of the constitutional right in play.





14 Comments:

The court's analysis makes little sense. As Bashman notes, the more sensible approach is special-needs analysis under the Fourth Amendment, not waiver.

In any event, contrary to your view, I do not think waiver could possibly apply in the First Amendment context. Imagine a permit requirement that required permitholders to consent to unfettered government censorship in order to obtain a permit to protest in a public park. It's simply absurd to say that because one has obtained a permit, one has waived a First Amendment claim. Rather, the government's imposition of the condition on the permit is itself a First Amendment violation. (Or, more accurately, any attempt to enforce the alleged waiver would violate the First Amendment.)

That being said, the entire analysis turns on what type of forum is at issue. You assert that the stadium ought to be considered a limited public forum, but that's dubious. The government has not opened up these stadiums for public speech. Rather, it has constructed them in order to rent them out to private parties who then use them to conduct business. That those businesses allow their patrons to engage in certain levels of speech does not convert stadiums into limited public forums any more than Wal-mart allowing customers to engage in speech on its premises does not create a limited public forum.

Anonymous Anonymous -- 7/11/2007 12:58 PM  


I don't think it is a limited public forum. It is under the dominon and control of the tenant who has relatively broad power to admit or deny entry to whomever the tenant pleases to admit or deny.

The tenant is the actor. If the tenant were a public high school or public university the tenancy status would not grant to it greater power to restrict speech than it has on the property it owns, but a private owner during the period of the tenancy does not become a state actor, but rather remains a private actor.

Blogger Mark -- 7/11/2007 1:28 PM  


Watch out, Mark. Howard's going to cite Burton . . .

Anonymous Anonymous -- 7/11/2007 1:34 PM  


Actually, I don't need Burton in this case. The Tampa Stadium Authority owns and operates the stadium, it conducted the pat searches, and it (not the Bucs) was the named defendant. No one doubted state action here and the defendant did not contest the issue in the 11th Circuit.

I agree with Anonymous that the condition in his permitting example *should* be deemed unconstitutional. My point was that a court seriously following Johnston likely would find that a fan had waived his First Amendment rights by entering the ballpark. I don't like that result--but that is where I think Johnston would take a court.

I disagree with Anonymous about the nature of the forum. The government and the team) have opened the grandstand/bleachers and invited the public to enter (for a fee), to watch the action on the field, and to express themselves about the game, players, etc. People are invited to the grandstand specifically to sit in their seats and to speak--in fact, they are encouraged to do so by a scoreboard urging them to "make some noise." When government opens a space with the intent that the public will enter and will engage in expression (or when expression is not incompatible with the other uses of the public space), a public forum has been created. As I said in comments to a different post: Fan speech is part of the sporting event.

What Wal-Mart customers do is not comparable. If a Wal-Mart customer pulled a chair into the aisle and began cheering on the person stocking shelves (think Peyton Manning in that commercial), she would be asked to leave the store. Speech is incompatible with the other uses of the space and Wal-Mart showed no intent to open its space to the public for expression (understanding expression as more than people talking with one another and with store personnel).

Blogger Howard Wasserman -- 7/11/2007 11:24 PM  


Howard,

Your last comment about Wal-Mart demonstrates the point I made in the comments section to your other post about treating sports differently from other industries. You recognize that customers in both places (Wal-Mart and stadiums) are engaging in the expression of speech, yet you are sympathetic to Wal-Mart's ability to draw lines regarding what it deems "acceptable" expression and regulate certain forms of expression by asking the customer to leave. In other words, you think that because the teams permit customers to cheer and boo, that means it must be acceptable to chastise players about steroid usage (there is clearly a difference). Why can Wal-Mart draw lines but professional sports teams cannot?

Blogger Rick Karcher -- 7/12/2007 8:28 AM  


Howard:

The idea that the "government" has opened, for example, Yankee Stadium to any type of expression is nonsensical. The Yankees are well within their rights to refuse to let anyone in and just market their games on TV and radio. Therefore, there's no government action creating any type of limited public forum in these cases.

Further, just because a private entity encourages certain kinds of speech does not mean that it creates a limited public forum. I would point you to the mall free speech cases (Robbins in particular) from the 1970's and 1980's. The plaintiffs tried to make the same argument you're making: that the forum is no incompatible with speech, even though it's private property. They lost.

Anonymous Anonymous -- 7/12/2007 9:19 AM  


Anonymous:

The fact that a designated public forum can be closed at any time and for (virtually) any reason does not mean that it is not a public forum while it is open. The ability to shut the forum down is what separates a designated public forum from a traditional public forum. But while open, the rules for both are the same. For example, the meeting room at the public library is a designated public forum (almost every federal court of appeals has said so), even though the library could shut the rooms down at any time. So, yes, the Yankees could choose not to open the Stadium to fans. But that says nothing about whether the space is a designated public forum while it is open to the public.

The shopping mall cases are not applicable in the many cases, including this one, in which a public entity owns and operates the facility--whether through direct control or because the private/public connection makes the team a state actor (see the various other posts on ballpark speech). The reason malls are not public fora is that they are not publicly owned. Depending on its set-up, a publicly owned shopping mall might be.

Rick:

As I said in a comment to the other post: You may be correct that there is something unique to sports as opposed to other businesses; a fair insight that I think I had been taking as a given.

The difference owes to the space in which sports are played and to the fact that expression is such an essential part of the sporting event. People go to the grandstand to engage in expression--to cheer, boo, and to engage with the otherwise broad range of expression going on around them. And the games themselves are charged with social and political content, relating to the players, the game, and THE GAME. Sports invites and expects this level of fan expression. Wal-Mart (and most other businesses) do not. Wal-Mart does not operate a business that connects with customer expression in the same way. The space in which Wal-Mart operates has not been opened for fan expression in the same way. That said, if Wal-Mart were to hold a product show in a state-owned facility and tickets were available to the public generally, I do not think Wal-Mart protesters could be kicked out of the grandstand, assuming their speech was non-disruptive.

Steroids are part of the game and thus fall within the scope of a forum dedicated to speech about the game. If MLB is going to celebrate Bonds breaking the record, then fans should be able to challenge that celebration on the ground that Bonds cheated to get there. I do not see any clear difference between booing because Bonds plays for the other team and booing because I believe Bonds has disgraced the game. We would not make that distinction as to any other expression--I can criticize the President because he is a Republican, I can boo the President because he is rich, or I can boo the President because he is doing a bad job.

Now, Rick and I have such vastly differing visions of free speech and the First Amendment that we are going to remain at an impasse. So be it.

Blogger Howard Wasserman -- 7/12/2007 10:27 AM  


Prof. Wasserman:

You're quite right that the shopping mall cases do not directly apply.

It seems to me that you've got two hurdles:

1) finding state action; and
2) assuming there is state action, finding that a stadium is a limited public forum.

I think you're on firmer ground with (2), but I respectfully disagree with your position on (1).

A couple of hypos:

1) Under your theory and given the holding in Cohen v. California, do the New York Yankees (or a similarly situated baseball team) have to let in fans wearing shirts saying "F--- Bonds!"

2) Under your theory, would a "Ladies Night" in which women can buy half-price tickets to a Yankees game violate equal protection?

Anonymous Anonymous -- 7/12/2007 5:12 PM  


Anonymous:

1) Yes, Fuck Bonds is protected (I specifically made this point as to "Fuck Duke" t-shirts in a previous article). To paraphrase what I wrote then: It is inconceivable to me that "Fuck the Draft" is OK in a courthouse, but Fuck Bonds is not OK in the cacaphony of a baseball crowd of 55,000 people.

2) Interesting question as to Ladies Night. But here is the thing: It does not matter whether the Yankees are a state actor in that context because the stadium is in any event a place of public accommodation, so the Yankees cannot discriminate on the basis of gender. Various state and local laws presently are struggling with the question of whether Ladies Nights at bars and restaurants constitute sex discrimination; the New Jersey Supreme Court held that it did in 2004. My guess is that the Equal Protection analysis (if the team is a state actor) would be similar to the statutory analysis.

Blogger Howard Wasserman -- 7/12/2007 6:49 PM  


Does Wal-Mart have to let in a customer wearing a shirt that says "Fuck the Wal-Mart Stock Boy!" ? [Maybe if Barry Bonds is the stock boy.]

Blogger Rick Karcher -- 7/12/2007 9:20 PM  


No, but only because Wal-Mart is not a state actor, a Wal-Mart store is ot public property, and a Wal-Mart store is not a designated public forum.

Blogger Howard Wasserman -- 7/12/2007 9:30 PM  


Regarding Ladies Night:

There have been a number of lawsuits under California's Unruh Civil Rights Act, including against the Angels and A's, for gender discrimination when teams give items (such as pik tote bags and hats) only to adult women on Mother's Day and not to men. Most of the suits settle (on Mother's Day this year, the Angels gave bags to the first 25,000 fans) or are thrown out. But courts still are working through it all.

Blogger Howard Wasserman -- 7/13/2007 9:00 AM  


Following up about Ladies Night, see this article http://www.law.com/jsp/article.jsp?id=1184144791036&rss=newswire about a pending class action lawsuit against Manhattan bars for having Ladies Nights. The case also raises a state action: the plaintiffs are claiming that the bars are state actors because those bars are regulated by the state liquor control board. The state action argument seems a clear loser (so no Section 1983 claim), but they might have better luck under state law.

PK

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