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Tuesday, December 04, 2007
(More) Cheering Speech at Public Universities

You all know well that my ongoing First Amendment obsession remains what I call "cheering speech"--oral and written expression by fans in the stands at sporting events, focused on the game and its participants, about sport more broadly, or about society as a whole. Because sport is such an essential aspect of our culture, speech about sport possesses serious cultural value. Relatedly, the grandstand is the essential public forum for cheering speech, subject to the ordinary rules of public-forum analysis, namely few if any content-based regulations. The First Amendment problem arises most vividly in arenas owned and controlled by public universities, where the necessary state action is obvious. I have focused scholarly attention here, here, and here; I have blogged about it, among other times, here, here, and here.

The trigger for these controversies usually is an effort by a public university to institute and enforce a code of fan conduct at games, prohibiting profanity, vulgarity, and offensive speech, particularly anything having a sexual connotation. What is overlooked in all of these efforts is one simple fact--under Cohen v. California, profanity and offensive speech is constitutionally protected, outside of narrow categories (such as fighting words or threats) that simply do not arise in the context of a crowd of 15,000 screaming sports fans. So, too, is sexually explicit speech.

And yet schools keep trying . . .

The latest example comes from Ferris State University in Big Rapids, MI. A student (I am removing his name for this post) sent an e-mail to the editors at First Amendment Center Online, which was passed along to me.

According to the student, the school sent the following to students:

"Hello, Bulldog Hockey Fans,

Your tremendous support of Bulldog hockey is great for the program andis appreciated by everyone associated with it. However, recently we have crossed the line in fan support by having vulgarity and profanity become a large part of what should be Dawg support. This will not be allowed to continue.

Those chants that contain profanity or are vulgar in content, especially those that have a sexual connotation, will not be tolerated. For those of you who are regular attendees to Bulldog hockey games, these chants
are, most notably, before many face-offs when it is chanted, "Drop it. Drop it. Thank you, A***ole!", and those where a word is spelled out (for example, "Give me a D….") that leads to a message with a sexual

You are important to our program, but so are the families and children that also look forward to attending the games. As a result, anyone that insists on using profanity and vulgarity will be removed from the arena
and forfeit their ticket privileges. If you do this as a season ticket holder, this means you will forfeit your tickets, with no refund, for the remainder of the season. In addition, any FSU students caught using
profanity and vulgarity will be referred to the Office of Student Conduct for further action."

The student then tells the following story. I concede there likely is more to the story, but for now I will apply Rule 12(b)(6) analysis and accept all the facts alleged as true:

I recently was removed from a hockey game and my ticket privileges were revoked for participating with the entire student section in a chat that goes "Give me a D, Give me a I, Give me a L, Give me a D, Give me a O, What's that spell? Dildo, What does that mean? Put it between the pipes." [Ed: College hockey fans may be the most unique and creative in their cheering speech, for better or worse.] My participation in the cheer was limited to the "What does that mean? Put it between the pipes." Along with my privileges to hockey games (which I payed for and never signed a document stating that I would not participate in such cheers) I have been referred to the Office of Student Conduct for Judicial Discipline. This referral remains on my student records even after I graduate. I was the only person that was removed for this cheer and I was not the one to initiate it.

Again, taking these facts as true, the student at least states a First Amendment claim. Where to begin

First, this is pretty typical of college policies in seeking to get students to clean up their speech to protect objecting audience members from having to tolerate offensive or objectionable speech. But this policy simply codifies a heckler's veto--government prohibits and punishes some speech because some in the audience may not like that speech and may not want to hear it. The University's reference to fan support "cross[ing] the line" is nonsense. The only line that can be crossed is into an unprotected category of speech; short of that, speech is not sanctionable simply because it crosses some line concerning what government approves of or likes.

Second, the university has acted here in the name of protecting the "families and children that also look forward to attending the games." The hope/belief is that protecting sensitive young ears and eyes provides the necessary compelling interest to regulate speech based on its offensive/profane content. And while courts continue to blandly accept protecting children as a compelling interest, that does not permit the school to reduce the population of adult fans to saying and hearing only what is appropriate for children.

Third, this situation illustrates a major problem with these fan-conduct policies--arbitrary and inconsistent enforcement. Accepting this version of events as true, it appears they picked out just one student from a crowd of people when a large number of people were engaging in the same speech.

Fourth, in some ways, this is an unfortunate test case for attacking cheering speech regulations because it lacks any political or social content, as cheering speech often does. This is just a large group of college students trying to irreverent and provocative and, in the end, being just silly, "crossing the line" as the University's letter said. But the First Amendment does not make (and precludes the state from making) such value judgments about protected speech--it is with the individual speaker(s) as to how best to express their ideas, silly or otherwise. And sport clearly remains an important cultural institution on Ferris State's campus, lending this speech some cultural import.

Finally, the sense that this all is not important as a First Amendment matter because of the speech at issue is tempered by the fact that, under the policy, student fans are referred to the Office of Student Conduct. The typical response to arguments about the protection for cheering speech usually runs along the lines of "It's not real punishment, he just was kicked out of the game." Not anymore; this student is potentially facing (possibly serious, we don't know) university sanction for speech that is otherwise constitutionally protected. That somewhat takes this out of the realm of being "just about sports."

[Cross-Posted at PrawfsBlawg]


Howard: somewhat off topic, somewhat not: How do you feel about speech such as the pink football locker room at Iowa? Is that "speech" and if so should it be protected? Is there a difference between that case and this one? If so, how? Just curious on your thoughts if you are willing.

Anonymous Anonymous -- 12/04/2007 9:36 AM  

Howard - while I agree with your opinion and analysis, I am wondering whether an argument can be made that the fact that this speech is in the context of a school and schools have a compelling state interest in controlling speech on campus makes any difference here? Would it make a difference if the campus were on or off campus? Very interesting...

Anonymous Anonymous -- 12/04/2007 2:39 PM  

Anon 9:36:

I suppose there is an expressive component to the color you paint a room, just as there is an expressive component to what you where, etc. Although with Iowa, I am not sure if the pink is meant to send a message or whether it is meant to have a soothing effect on the players in the room (as colors such as pink supposedly have). In any event, it is the school's own speech (how it paints its own spaces), so it is protected as such.

Anon 2:39:

I do not think it changes anything. This is a college and, typically, colleges are subject to the same forum and speech rules as society at large. Which means there is no compelling interest in "controlling speech," a concept entirely antithetical to the First Amendment. The best a college can do, perhaps, is limit its forums only to students and not members of the outside community. Beyond that, though, the school is stuck with what the students choose to say.

Blogger Howard Wasserman -- 12/04/2007 3:38 PM  


I'm assuming that you and I could prevent that sort of chant in our classroom lectures without violating the First Amendment. How do we legally draw lines in various situations on campus? Presumably, the same types of arguments would be made to justify preventing this chant in our classrooms -- i.e. it's disruptive, vulgar, unfair for the rest of the audience to be subject to it, etc. etc. You could say that chanting is just a part of sports, and it's not a part of the classroom, which doesn't sound like a well-structured legal argument. [Actually, chanting has been a part of my class -- I sometimes have the students chant the elements of various causes of action.]

Instead of a chant, suppose I ask a student in class why he or she disagrees with a judge's decision in a particular case, and the student says, "Because this judge is a f***ing a**hole!" Is that protected speech as well?

Blogger Rick Karcher -- 12/05/2007 6:52 AM  

We do it the same way we do it in society as a whole--look at the function and character of the space, along with the rules applied to that space.

The grandstand is a public forum--it has been opened to the public for the purposes of engaging in expression related to or not inconsistent with the game (i.e., expressive activity that does not interfere with or disrupt the action on the ice/field/court). These chants were consistent with the purposes for which the forum was opened and consistent with its use--cheering about the game and everything surrounding the game. And none of these chants in any way disrupted the game or the ability of fans to watch the game and engage in their own expression. The problem is that they offended some members of the audience and the government--but that is not a basis for halting or punishing otherwise protected speech in a public forum.

A classroom is (ordinarily--I suppose the individual professor could decide differently) a non-public forum. A group cheer interferes with or disrupts the ordinary operations of the space--it prevents the professor from conducting the class as she deems pedagogically appropriate. That does not mean chants are per se forbidden; it means it is up to the professor. But if (as you do) the professor has students chant the elements of a tort, that does not mean leave some of them free to start doing hockey chants because those hockey chants would interfere with the primary purpose of the space. But that interference arises because this chant prevents the professor from conducting the class as she seems fit.

Blogger Howard Wasserman -- 12/05/2007 9:12 AM  

I'm missing something. Isn't it just a matter of opinion about whether speech is "consistent with the purpose and use of the forum" or "disrupts the game or the ability of the fans to watch the game"? I can see a compelling argument that chanting D-I-L-D-O at a game has much less to do with the game than a student's yelling "Because the judge is a f***ing a***hole" has to do with the classroom. Some would argue that the expression in the classroom in an academic environment has much more value than chanting D-I-L-D-O at a game, not to mention that my classroom example would be much less offensive to the audience.

And you say that it's up to the individual professor and that the professor has the ability to conduct the classroom as he or she sees fit. But my question is, from a First Amendment standpoint, can I prevent a student from saying that in class? If so, why and how?

Blogger Rick Karcher -- 12/05/2007 9:48 AM  

I do not think it is a matter of opinion. Looking at the purpose of the forum, the reasons it has been opened and that people are given access, and the other governmental activities taking place in that space, does some expression fall within that defined purpose--is this speech consistent with that defined purpose and those other uses? Alternatively, will this speech disrupt the other activities taking place there? Those are the sorts of questions courts answer all the time.

Disruption/consistency must be defined in viewpoint-neutral terms. So speech is not rendered inconsistent with the forum or disruptive simply because some in the audience may not like what is being said. So the chants to which the administration objected were, at some level, related to the hockey game--the drop the puck chant on face-offs and putting something between the pipes. They thus are within the scope of the forum; they certainly do not disrupt the government's activities there--the hockey game itself. The problem is that people are offended by part of this message, which is not a viewpoint-neutral grounds for limiting the scope of the forum or the access to that forum.

The classroom is not a forum because it is not opened up for uninhibited debate. It has been opened up by me so I can teach today's lesson about Rule 15 of the Federal Rules of Civil Procedure. And I, as the professor and the possessor of academic freedom, control what gets said there as I see fit. Now, a pedagogically effective discussion will allow a wide range of views to be heard and possibly allow for some free-wheeling discussion (nothing gets the blood boiling quite like amending pleadings). I might reject the validity of the student's explanation for the case because it does not advance the discussion very far, although that has nothing to do with the use of profanity. But the point is that, because my classroom has not been opened for even general open discussion of Rule 15, it is not subject to any First Amendment analysis.

And note that if my analysis holds, the student in Rick's hypo would be protected in shouting "the judge was a fucking asshole" at the hockey game. But he would be subject to removal from the arena under the school's policy.

Blogger Howard Wasserman -- 12/05/2007 12:31 PM  

Whether speech is disruptive is a matter of opinion -- the relevant question is simply whether the university has the ability and desire to control it. The stadium and classroom examples are very similar, the only difference being the size of the forum (which I'll get to in a minute). In my classroom example, the university (the professor) desires to control student speech on the grounds that (the professor thinks) it's disruptive to others in the class, and the professor is has the ability to control it by some means, typically some element of fear, for example, the student might fear a bad grade in your class, or that you might kick the student out of your class that day. Similarly, in the stadium example, the university desires to control student speech because (the university thinks) it's disruptive to others in the stands, and the university wants to control it by some means, similarly, by kicking the student out of the game or as Ferris State is doing by making some notation on the student's transcript.

However, in the stadium example you say the university must be viewpoint-neutral, but in the classroom example you say that you don't have to be viewpoint-neutral (i.e. you said you get to control it as you see fit). I'm not understanding the justification for the different treatment from a First Amendment standpoint. In the classroom, the speech is debate; in the stadium the speech is cheering. You say "the classroom is not a forum because it is not opened up for uninhibited debate," but that's ONLY because you (the university) choose to control the debate (or the speech). We could say the same thing about the stadium, by saying that the university is controlling (or trying to control) the speech as well. And stadiums, similar to classrooms, are not open to the public -- in both situations the university grants people access based on paying for a ticket or school credit.

So here's the point. I don't think a student has a First Amendment right to say in class that a judge is a fucking asshole, nor do I think a fan has a First Amendment right to chant "D-I-L-D-O" at a stadium. The reason the student doesn't do that in class, and doesn't challenge your exercise of control in the classroom, is because there are various deterrent mechanisms (such as concerns regarding professionalism, concern that the professor or future colleagues will think less of them, concern over possibly receiving a bad grade, concern for being kicked out of class, etc.), all of which are not present in stadiums (i.e. so what if you get kicked out, so what if a security guard comes over and tells you to stop, so what if there is a school policy that says "no dildo comments"). I guess there is one mechanism that can be used to control vulgar speech at the stadium -- for example, if I was with my wife and young kids at a game and somebody next to us started chanting "dildo," that person would only say it one time. And if force needs to be used to stop it, as a torts professor, my advice is that you let him throw the first punch.

Blogger Rick Karcher -- 12/05/2007 2:41 PM  

There is a critical difference between disruption in the sense of annoyance/offense and disruption in the sense of actually preventing the primary purpose of the forum from going forward. The dildo chant in no way prevented the game from being played, nor did it prevent anyone else from watching the game or from engaging in their own cheering. It annoys and perhaps offends people--but that is not the type of "disruption" that the government can halt in defining or regulating a public forum.

If a student starts yelling or singing or making noise or making irrelevant and not-helpful comments in the class, she is doing more than annoying the professor and the other students in the class--she is preventing the class discussion/lesson from moving forward by taking up the limited time for the discussion. But that disruption comes not necessarily from any offense from the statements, but from their content. Despite what we say happens or should happen in a classroom, it is not a forum for uninhibited, robust, and wide-open debate and it simply cannot be, because nothing would be taught and learned on the subject at hand. A sports stadium is.

Blogger Howard Wasserman -- 12/05/2007 3:27 PM  

I'm not talking about yelling, screaming or singing in the classroom. My example was that a student answers a question by calmly saying, "because the judge is a fucking asshole." You said if a student starts "making irrelevant and not-helpful comments in the class, she is doing more than annoying the professor and the other students in the class--she is preventing the class discussion/lesson from moving forward by taking up the limited time for the discussion."
Here, you are not being "viewpoint neutral" -- you are expressing your opinion that the content of some remarks in the classroom can be, to use your words, "irrelevant and non-helpful". Just like the university is saying that a comment about dildos at its sporting events is irrelevant and non-helpful (plus offensive).

Furthermore, my classroom example isn't "preventing the discussion/lesson from moving forward" just as the dildo comment isn't preventing the game from going forward. If a student said that about a judge, class wouldn't be cancelled and nobody would be offended. But in the dildo example, more people in the audience are going to be offended than people in the classroom with the judge comment.

By the way, I don't think you've answered my one question: Do you think there is First Amendment protection if a student says, "because the judge is a fucking asshole"?

Blogger Rick Karcher -- 12/05/2007 5:45 PM  

Howard - your argument crumbles as soon as you ackowledge that the fans would be unprotected by the First Amendment if the school punished them for taking off their clothes in the stadium and proclaiming "our nakedness constitutes our expression of love for the home team!"

The game would go on, other fans could cheer regardless of the display, and the actions of the crowd segment would be - expressly - expressive conduct that you contend is protected speech. But the notion that such activity, even though it survives your permissive test, really is protected speech is simply wrong.

Why not? There are a variety of reasons why not. As an initial matter, the First Amendment was enacted to protect the communication of ideas, not exhibitionism and profane cheers. Second, the public forum at issue has not been opened so that fans can outdo themselves in acting stupid; its been opened for purposes of sporting events. It is not a debating society. The analysis must be undertaken whenever the government opens a public forum - for example, when the capitol police open the capitol rotunda so that the public can view a former president lying in state, that does not mean that they cannot bar protesters from screaming in Nancy Reagan's face. That is true even where others can still engage in their own speech about what a great person the late president really was. And the actions of the naked jokesters, like the "dildo" jokesters, would be obscene under the circumstances, violate community standards, and be subject to regulation under Pacifica and its ilk.

In the end, the discussion is really a bit silly - this punk should take the whole experience as a lesson learned, and exercise some restraint and manners next time.

Anonymous Stokie -- 12/05/2007 5:56 PM  

First: Doctrinally, prohibitions on nudity have been upheld as content-neutral restrictions (although courts have held in isolated cases that some limited expressive public nudity must be permitted). Accepting that doctrine for the moment, there is no question government can impose content-neutral regulations on speech in a public forum. But prohibitions on profanity outside of broadcasting (which is the only thing that Pacifica controls) are not content-neutral and neither is a regulation designed to prevent listeners from being offended.

The grandstand is opened so people can watch the game. But part of doing that is engaging in (loud) speech about the game and everything surrounding the game. So, in my view, that means the government has opened a full designated public forum. In defining the limits of that forum, it must do so in a viewpoint-neutral fashion. So even if it is a limited public forum given its narrowest scope of "speech about this hockey game" (and I would define it more broadly), the university cannot limit its scope to "non-profane and non-offensive" speech about this hockey game--that would be a viewpoint-discriminatory definition.

Once the forum has been defined as one for speech about this hockey game, any content-based restrictions on speech that falls within that scope must be narrowly tailored to serve a compelling interest. And preventing offense to listeners is not a compelling interest.

On the other hand, the classroom has not been opened for free and open discussion about anything. It has been opened up so a professor can lecture to students on a subject; it is not any sort of forum for student expression. It is either a non-forum or a non-public forum (I go back and forth on this). In either event, government can be as viewpoint-discriminatory as it likes in defining and regulating what occurs there. Unlike in a public forum, students have no First Amendment liberties in that classroom. And the reason is that an unlimited liberty of free and open discussion would, as a definitional matter, prevent the professor from conducting the class in the manner she sees fit. So we start from the premise that it is a non-public forum and the professor can control whatever gets said.

As to Rick's question about "the judge is a fucking asshole": It depends on where it is said. It is protected at the hockey arena. It is protected on the street corner for the same reason. It is not protected in the classroom because *nothing* is protected in that non-forum.

Blogger Howard Wasserman -- 12/05/2007 7:59 PM  

Once you acknowledge no First Amendment in the classroom, then I think your stadium argument fails. While it is expected that people will cheer in the stadium, it is also clearly expected that a student will give a response to a question from the professor. The stadium is not a street corner, because the university charges admission just as it charges the student in the classroom. You haven't convinced me why (from a policy standpoint or otherwise) the university must be viewpoint-neutral in the stadium but not the classroom.

If anything, I think the First Amendment protection in the classroom example is stronger than in the stadium. Unlike the stadium, the classroom contains only adults in a purely academic environment who learn by exchanging their views and opinions (one of which may be an opinion about a judge).

Blogger Rick Karcher -- 12/06/2007 8:07 AM  

The reason the student has no *right* to speak in the classroom is because the classroom has not been opened for student speech. It has been opened for the professor to teach her class. If a professor wanted to do nothing but lecture and never allowed students to ask or say anything, then students never would say a word and the class (the purpose of the forum) moves on. This is pedagogically ineffective, but it is perfectly constitutional.

The arena has been opened up for speech by members of the public; fans are given access to the arena grandstand to watch the game and cheering is part of that. The arena is not a street corner. But it is analyzed and subject to the same First Amendment rules as if it were a street corner. That is what a "designated public forum" means--government has opened its spaces up for speech by members of the public and that space becomes the equivalent of a street corner. The fact that the university charges for access does not affect the analysis. Government can charge for access to a public forum, so long as the amounts charged are "reasonable" (whatever that means) and not tied to the content of the speech.

Blogger Howard Wasserman -- 12/06/2007 10:11 AM  

Howard, Thank You for Posting this about me. I have recieved a letter from the office of Student Conduct and the following are the policies that I supossedly violated:

Disorderly Conduct: Disorderly conduct that interferes with teaching, research, administration, or other University or University-authorized activity or that disrupts the university environment either during an event or incident or as a result of an event or incident.

Failure to Comply: Failure to comply with the directions of authorized University Officials in the performance of their duties, failure to identify oneself when requested to do so, failure to comply with reasonable requests of other students, or failure to comply with the terms of the disciplinary sanction.

Lewd, Indecent, Obscene: The University may discipline a student for lewd, indecent, or obscene conduct.

I was wondering if you could provide any information that would prove that I did not violate these policies.

Anonymous Anonymous -- 12/06/2007 10:36 AM  

I am not licensed in Michigan and am not able to give legal advice. I also do not know enough about the facts to get into specific defenses to any of this. Sorry I cannot be more help, especially not in this (non-public) forum.

Blogger Howard Wasserman -- 12/06/2007 12:47 PM  

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