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Tuesday, July 03, 2007
 
Fear of Free Speech: Barry Bonds Edition

Major League Baseball has asked teams to "carefully screen" signs that fans display relating to Barry Bonds' pursuit of the career home-run record. According to reports here and here, although MLB has not issued league-wide rules, it has brought the issue to teams' attention in several conference calls and is leaving the matter to each team. Most teams rely on a rule that banners be in "good taste" or "not in bad taste," whatever that could possibly mean. This obviously is less of an issue in San Francisco, where fans are uniformly supportive, than on the road cities that the Giants visit.

Some examples of what has been allowed:

* Signs with asterisks (a silent reference to the idea that Bonds' record should be accompanied by an asterisk in the MLB Record Books because of his steroid use, much as it was believed Roger Maris' single-season record was accompanied by an asterisk because it was done in a longer season). A host of these were on display in Cincinnati Tuesday evening, where the Giants are playing and where Bonds hit No. 751.
* "Break records, not rules" (with a baseball sporting a black eye)
* "Hey Barry! It's Not a Record. You Cheat"
* "Call Hank Aaron and Say You're Sorry."
* "756* Was it Worth it for An *?"
* The MLB logo with a player swinging a syringe. This is from a group called BoycottBarry.com, which also is marketing blindfolds for fans to wear to "shield your eyes from the disgrace."

Some examples of what has not been allowed:

*"Though shalt not covet impure gains"
*"Stop inflating records," with a syringe injecting and pumping up the letters
* A sign calling for Bonds to get 756 days in jail
* "Milwaukee Loves Hammerin' Hank, Not BALCO Barry."
* BoycottBarry t-shirts, signs, and blindfolds were disallowed at Dodger Stadium last year.

The title of this post captures my thoughts upon reading the following from Camille Johnson, the Dodgers' senior vice president for communications. Johnson said the team wants to create a

"fan-friendly environment. We don't want anybody inciting the crowd, and we think those kinds of things can cause an untenable atmosphere, so we would ask them to turn those T-shirts inside out or remove them."


I think MLB and most of its teams think along similar lines. Simply put, all are afraid of people speaking their minds on the subject of steroids, Barry Bonds, and the home-run record. And we can broaden that statement to say all are afraid of people speaking their minds of anything that is critical of baseball, its players, and its teams.

Look at all of these examples again. Are any of those messages in "poor taste"? That is, are any in poor taste if we define poor taste as meaning anything beyond "critical of Barry Bonds" or "calling attention to something MLB and Bonds would like to keep out of the public discussion"? And what is an "untenable atmosphere"? Is it really untenable if ideas and opinions are expressed, people are criticized, and wrongdoing (OK, suspected wrongdoing) is brought to the fore? Is there anything in any of the messages above that could be read as "inciting" anyone to do anything other than agree that Barry Bonds cheated and should not be lauded for his upcoming achievement? How is wearing a blindfold when Bonds comes to the plate "incitement"?

And how do any of these signs interfere with a "fan-friendly environment," unless criticism of players or management (absent profanity, just because I have to take that out of the mix) should not be seen by women and children. Or is an environment "fan-friendly" only if happy and cheerful things can be said?

Sport is becoming a good prism through which to view the state of the freedom of speech. And it is not in a good state.

At the individual level, people seem more likely to speak out (i.e., to exercise the liberty to speak) about their sports rooting interests or about Barry Bonds cheating than they are to speak out about their rooting interests in the 2008 presidential election or about President Bush commuting the sentence of [ED: corrected in response to a Commenter] Scooter Libby. Fans feel sport more in their daily lives. Many are more passionate about it. Sport is more local. It remains a vital social institution, worthy of discussion. And by going to the ballpark to watch it all happen, individuals have a forum in which to express their views about the game and about sport. A person is more likely to get her message about Barry Bonds heard than her message about George Bush.

On the other hand, MLB and its teams demonstrate the same fear and loathing of "uninhibited, robust, and wide-open" debate that governments and elected officials do. But MLB teams are able (for the moment) to make and enforce rules about "family friendliness" and "good taste" that government, bound by that pesky First Amendment, would get slapped down in court for making.

I keep waiting for someone to take the leap and sue a team that plays in a public stadium and enforces these absurd anti-speech rules. Assuming that state-action hurdle is cleared (a big assumption, I know, but the arguments are there to be made), no court in the United States could find any of these messages unprotected by the First Amendment. And even if some teams are not state actors (the Dodgers own Dodger Stadium and Pac Bell Park, site of next week's All-Star Game, is privately funded), I wish they would just recognize that free speech and the expression of dissent is not a bad thing. And certainly nothing to be feared through "careful screening" of what people want to say.

Unless, perhaps, MLB is feeling a tad embarrassed that a purported steroid user is about to break its most hallowed record. Maybe if fans cannot talk about it, it will go away.





14 Comments:

Howard,
I agree with you, none of the expressions that you mentioned seems to be in bad taste, except to the hardcore yet sensitive Bonds fans that would get their feelings hurt. I may be a bit biased on this issue, I cant stand Barry Bonds, but I will always hold Big Mac in high regards. Double Standard? perhaps.

I do think that the Giants can make an argument (a weak one, but all the same) that keeping "inflamatory" expressions out of the park is important in order for them to keep a safe enviroment in the stadium. some anti-Bonds signs could in theory be enough to start a heated argument or even a fight between the speaker and a Bonds supporter(Hey, I said it was a weak argument). Of course that hypothetical bawl would most likely be caused by a spectator who had more alcohol than blood in his system, not unheard of at a sports venue. But overserving fans isnt the topic here so...

I agree that dissent is a good thing, and if you can burn the flag, you should be able to wear a blind fold when Barry steps up to the plate. As you noted however, the biggest problem here is the venue, is it public or private.

I think the argument can certainly be made at a venue that is funded in part or in whole by the public, so if an arena is funded in part by bonds, taxes, or otherwise by a city, the free speach argument should hold up. A good example of this would be Safeco field in Seattle where the total cost was app. $520 million, the public financing was nearly $320 million, and the owner of the stdium is the Washington-King County stadium authority.

lets take that a step further.
what if we talk about a venue that is in fact privately owned, you mentioned Dodger Stadium and Pac-Bell park, and you can add to that list Fenway Park, Dolphin Stadium (owned by Wayne Huizenga), and Wrigley Field. A question mark here is Busch Stadium (owned by The Cardinals but funded in part by the City of St. Louis).

Could you make the argument that if you open your doors to the public you cannot supress speach that otherwise would be allowed under the First Amendment? The ADA has been held to be enforceable at otherwise completely private golf & country clubs that allowed the public in as spectators, could you stretch that argument into a free speech issue? This would definately be harder to overcome than a venue owned or funded by a city (or otherwise public).

My only concern here is how far can we take it? If we enforce the First Amendments free speach clauses in private venues, can we enforce the freedom of religion clauses as well? Lets stay in the world of sports and take this argument to a nascar race. most if not all speedways used for Nascar racing are private, and before every race it is custom to have a man of the cloth say a prayer over the speaker system. If we can stretch free speach into the private area, can we also then stretch the religion clauses that same way? is that taking it too far?

On a side note:
President Bush did not pardon Libby, he commuted the part of the sentence that involved jail time; the $250,000 fine and Felony conviction stands. But, this is the sports law blog, so I'll save my political nit-picking for another day.

Blogger Jimmy H -- 7/04/2007 2:10 AM  


Thanks for the correction as to Scooter Libby -- see edited post.

I agree teams are concerned that "inflammatory" messages will anger some fans. In retrospect, this is probably what Camille Johnson really was talking about--inflammatory messages by A that piss off B--not true incitement by A of unlawful conduct.

But the solution demanded by any viable theory of free expression is to punish the fan who starts (or threatens to start) the fight, not the person whose expression angered that fan. Otherwise, MLB is endorsing the so-called "heckler's veto"--I do not like what you say and, by creating a risk that I will become violent in response to what you say, I can get the authorities to stop you from speaking. If that concept takes hold, in theory all expression at the park should be halted in the name of preventing violence. If I am a Dodger fan, something as simple as "Go Giants" could anger me enough.

Blogger Howard Wasserman -- 7/04/2007 7:42 AM  


Prof. Wasserman:

Very often you have insightful things to say, but you're becoming a parody of yourself. "Sport is becoming a good prism through which to view the state of the freedom of speech. And it is not in a good state." I hope you don't really believe this ridiculous rhetoric. There's no shortage of criticism of Barry Bonds. There's only one forum -- his workplace! -- where fans cannot engage in certain kinds of criticism. This is not the end of the world, so stop acting like it is.

And another thing, why are you waiting for "someone" to take the leap? Why don't YOU get yourself thrown out of a game for speech-related reasons and then sue? Perhaps you don't even have to do that. Just claim that you plan on bringing a sign on the banned list to a game and sue for a declaratory judgment. What is stopping you from doing any of the above?

Anonymous Anonymous -- 7/04/2007 11:03 AM  


Anonymous:

First, the fact that there is lots of criticism of Bonds out there says nothing about whether an individual fan is being denied the best opportunity to criticize Bonds. For many fans, the ballpark is the only place in which her views are likely to reach a wide audience, to be seen and heard, particularly by the powers-that-be. In other words, it is the place in which her speech is most effective and appropriate. The fact that someone can talk to her friends at a bar or call into a radio talk show for 30 seconds or even write about it on a blog is not a substitute for being able to speak out amidst a crowd of 30,000 intimately involved with the very subject of my criticism.

Second, I reject the idea that it is permissible to deny a person the chance to speak in one forum because there are opportunities to speak in other places and at other times, where the different speech fora are not equivalent. The ballpark grandstand is *the* forum for everything about baseball--the good, the bad, and the ugly. Baseball is trying to eliminate discussion of the bad and the ugly. And if MLB is going to eliminate certain expression from even one expressive forum, it needs to come up with some valid reason why.

I will leave the more personalized aspects of your comment alone.

Blogger Howard Wasserman -- 7/04/2007 11:54 AM  


Howard,

while I agree with you on this issue, free speach should not be limited in the ball park simply beacause MLB wants to keep the debate out of its most effective forum, I'm not sure if the issue is as clearcut to me as it is to you.

for me it all comes down to the venue. If the venue is private, then the venue operators are probably within their rights to place restrictions on speech, for better or worse.

The interesting part (to me at least) is how you would decide if a venue is public or private. If it would require that the venue is owned and funded by its operators, then only a handful of venues could limit this type of speech.

A second issue would be that of standing. I would think that standing would only be achieved by the fan that had his or her expression rejected or limited.

this brings us to a third problem. If a court were to hear the issue and decide in favor of the fan, that holding would be limited to the expression in that case would it not?

Blogger Jimmy H -- 7/04/2007 1:38 PM  


As I've noted here in the past, the NFL has also had fan free-speech issues in recent years, specifically the Detroit Lions with the "Fire Matt Millen" (as team GM) campaign. The Lions organization has frowned upon these protests, but has proven entirely incapable of suppressing them (the movement has long since spread to other sports and beyond Detroit). The Giants and MLB would do well to heed the lessons of the Lions' example.

Blogger Joshua -- 7/04/2007 2:02 PM  


I have discussed the state-action arguments in my articles on the subject and in the prior posts on Yankee Stadium and Real Salt Lake. Determining whether a team becomes public would require a fact-intensive, case-by-case analysis, looking at the details of the relationship among the teams, the ballpark, and the government.

Yes, this means that different speech rules might apply in different ballparks. But that happens a lot. For example, if the Big Ten established a conference-wide fan-conduct rule, it might be enforceable at Northwestern but not at University of Illinois. My hope is that, if non-state-actor teams see that critical fan speech is not incompatible with the game, they will voluntarily abide by First Amendment rules.

Standing likely would lie with a fan who tried to carry or display a sign and was removed or prohibited from doing so. I suppose that someone with a sufficiently formed present intent to try to carry a sign in, but is deterred also might make a case for standing, particularly if she wanted to launch a general challenge to a team's written sign policy.

As to your third issue: It depends on what challenge the fan brings and what the court holds. If the court holds that a team's written policy violates the First Amendment, the team would be enjoined from enforcing it against anyone. If the court holds only that this one instance violated the First Amendment, it would not be so broad. But even that narrow decision would give a pretty good hint to teams as to what expression they must allow in the future.

Blogger Howard Wasserman -- 7/04/2007 8:26 PM  


Howard,

is your article on the stadium state-action issue available anywhere for those of us who no longer has access to lexis or westlaw?

Blogger Jimmy H -- 7/04/2007 9:09 PM  


The Tibetan protesters at the Real Salt Lake seem to be the perfect plaintiffs to me. If I remember the facts correctly, a public university stadium, the involvement of university police, political speech of the highest order.

Anonymous Anonymous -- 7/05/2007 11:06 AM  


Howard,

Interesting post, but as usual, I have a little different take on it than you do. I don't really see much distinction between the sign examples you cited -- except that the signs that were forbidden at the stadium seem a little less tasteful than the ones that were permitted. But to me that's neither here nor there.

One thing that seems to always get lost in the discussion is that MLB is simply selling a product. So it's not just a safety issue. The teams would obviously be concerned about any outside influences that could negatively impact the game or the players performing on the field. While I understand your point that the stadium provides an opportunity for the fan to have his/her voice be heard by the greatest number of people, at the same time this also has a greater impact on the league's product than if this same person just yelled it out his/her bedroom window for a few neighbors to hear [but telling your buddies at the water cooler the next day that you were shown on ESPN for 3 seconds wearing your anti-Bonds t-shirt is much more exciting than telling them you yelled something out your bedroom window].

So why do we view sports differently than other products and services? -- or why should we from a legal standpoint is maybe the better question (assuming there is no state action). Pepsi is going to view somebody holding an anti-Pepsi sign walking down a public street much differently than if that person wanted to do it inside its world headquarters building.

Blogger Rick Karcher -- 7/07/2007 3:52 PM  


It is not a question of sports v. other products and services. It is a question of state action and the public forum doctrine.

Pepsi is not a state actor and its headquarters are private property. It is entirely unbound by the First Amendment. And Pepsi's headquarters or a bottling plant are not, under any view, public fora.

My argument is that, by virtue of their control over publicly funded ballparks, baseball teams have become state actors, at least for purposes of operating the grandstand at the stadium. And the grandstand has all the markings of a public forum for sport-related speech, broadly understood. The teams thus are bound by the First Amendment with respect to what they can prevent fans from saying (in writing and orally) at the park. And fans are speaking in a space that is set aside for expression.

Now, if you reject either prong of that argument, then I lose. But I think I have some doctrine and a lot of general free-speech principle behind me.

Blogger Howard Wasserman -- 7/10/2007 7:19 PM  


Howard,

I think you ARE treating sports different from other industries.

For one, you say that stadiums are "public fora". But they're really not because the teams only permit members of the public to attend the games if they obtain a license (i.e. a ticket), which makes it unlike a protest on Washington, a public street, etc.

Also, there are many private companies that receive public funding. I was not using the Pepsi analogy with regards to the state action issue. But since you focused on the state action issue, how would you distinguish publicly-financed stadiums from large manufacturing companies (the auto industry is a good example), that build and operate their plants in geographic locations depending upon where they will receive the most public financing through tax subsidies? Does that mean car manufacturers and auto parts suppliers become state actors when they receive public funding?

I used the Pepsi analogy because teams are no different than other companies selling products from the standpoint of wanting to promote a good image about their product. My guess is that you would be more sympathetic to General Motors if members of the public were touring one of its automotive plants and carried signs stating that GM's workers are overpaid and lazy (which of course I am not suggesting is true by any means). But are you treating the two products the same?

Finally, I understand the state action issue (and that's why I said in my previous comment "assuming there is no state action"), but I'm not sure what you mean by "general free speech principle". Is it by virtue of the fact that members of the public are gathered in one space when they purchase the league's product? If that's what it means, then you are in fact highlighting a specific characteristic unique to sports, and therefore treating sports different from other industries.

As usual, enjoyed the discussion.

Blogger Rick Karcher -- 7/11/2007 8:52 AM  


As to the ticket: See my post from today on the 11th Circuit's stadium search decision. Government can (and frequently does) require people to obtain permits before they can enter public fora, particularly so-called designated public fora (say, an auditorium or the meeting room in the public library). Having to purchase a ticket to enter the stadium is no different.

Mere receipt of public funds does not make a private entity a state actor. But more is going on with most stadiums -- the stadium is built and oftenowned by the government; sometimes it is controlled by the government and sometimes the rules of operation are set and/or enforced by a combination of private and government actors. That is a level of connection greater than the company's receipt of tax breaks. This is admittedly a matter of degree.

People go to the grandstand to engage in expression--to cheer, boo, and so on (and I believe that "so on" is pretty broad). That is why the stands are opened opened, that is why the public has been invited to come in. Perhaps Rick is correct that this is unique to sports as opposed to other businesses. But if so, that is because fan expression is intimately connected to the sports event in a way that it is not part of Pepsi operations (or GM or Tom's Widget Company or whatever company you want to use). It is hard to imagine a live sporting event without a cheering (i.e., speaking) crowd.

I would argue that it is more connected to the space of the arena grandstand, regardless of the event occurring down below--be it the rodeo, the circus, or GM's auto show.

Blogger Howard Wasserman -- 7/11/2007 9:59 AM  


Try this one - will they let you into the park with this shirt?

"Screw Everybody - I love Bonds"

Check it out on

www.screweverybody.com

Seems to be in pretty good taste to me - but I'm not a band-wagon Barry hater like many of you.

Blogger Colton Mac -- 7/11/2007 8:18 PM  


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