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Sunday, March 09, 2008
UNC-Duke and Cheering Speech

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Last night's UNC-Duke game provides a good opportunity for two quick thoughts on cheering speech. The game was another chapter in what is supposedly the nastiest and deepest rivalry in all of college sports, played at the arena whose fans get the most attention for their clever/rude (depending on your point of view) cheering speech.

First, Duke fans wore Carolina-blue ribbons in memory of Eve Marie Carson, the UNC Student President who was killed last week. I assume there was a moment of silence, but I did not see the beginning of the game. A wonderful gesture--and an illustration of precisely why cheering speech is so important and why I define it as such a broad category of expression. Sporting events are a unique secular gathering place at which we can express, as a collective, a great many messages and ideas (here, ideas of sadness and mourning and sympathy). Of course, many of these messages, including the memorial here, have absolutely nothing to do with sports or the game. That's the point--what touches "the game" is enormously broad.

Second, early in the week, Coach K met with Duke students to talk about their cheering and urging them to keep it classy and supportive of Duke and to be particularly sensitive in light of the events of last week. (H/T: Deadspin). Good for him and for Duke. Because, ultimately, the key to controlling fan behavior is for those in charge (coaches, university administrators) to convince the bulk of students to keep it clean and to have the student-section mores self-police, for social pressure to bring everyone into line. That, in fact, is how we develop and maintain a functioning civil society--not through government coercion, but through social pressures.

But here is a question: Suppose one asshole decided to depart those mores by displaying a sign saying "Our President Lives, How 'Bout Yours?" Without question this is insensitive and obnoxious and rude and disrespectful. But it is not defamatory; it is not a targeted threat; it is not obscene (or even indecent); and it is not fighting words--it falls in no unprotected category of speech. So is there any theory of free expression (other than a sort of Borkean, the-First-Amendment-only-protects-political-campaigns-and-policy-discussions position that never has gotten anywhere) on which that sign should be formally punishable (put aside for the moment that Duke is a private university)?


right, a prohibition on racist or sexist speech would seem to violate RAV v. St Paul.

A violation on incentive speech or being an a-hole would chill too much free speech and probably violate VA v. Black.

Anonymous Anonymous -- 3/09/2008 11:53 AM  

Couldn't it be argued that the sign might provoke a violent reaction, especially with passions already running high? Creating a risk of violence should be sufficient grounds to require its removal.

Anonymous Peter -- 3/09/2008 1:43 PM  

But the provoke-a-violent-reaction grounds is limited only to up-close, face-to-face encounters in which the words are targeted at the listener. My hypo would not qualify. The risk of violent reaction outside that limited situation is not enough to justify restricting speech. That argument was made and rejected in the flag-burning cases.

Blogger Howard Wasserman -- 3/09/2008 2:36 PM  

Peter i couldn't disagree with you anymore.

the standard needs to be much higher than "risk" of something happening but closer to...

"if we don't get this speaker out of here, they're gonna beat the living spit out of him right now."

Moreover, a sign should never reach that threshold.

Anonymous Anonymous -- 3/09/2008 2:39 PM  

perhaps a sign that uses profanity might qualify because of the potential chance it reaches viewers at home in their living room on TV as they are a 'captive audience' (FCC v. Pacifica)

Anonymous Anonymous -- 3/09/2008 5:14 PM  

Anonymous 5:14:

A few thoughts on that.

1) I have heard this presented as an argument for moving the student section away from the court, so bench shots do not accidentally pick up such signs. That might be acceptable. I do not think it would support a ban on all signs with profanity.

2) Much depends on the limits of the "fleeting expletive" doctrine under federal regulations. That is, whether broadcasters can be punished for broadcasting "fleeting expletives" during a live broadcast and whether it is constitutional for them to do so. The Second Circuit held several months ago the FCC could not punish a station for fleeting expletives--see where that goes.

3) Last night's game (and, indeed, most games) are shown on cable, not broadcast television. Cable is not subject to FCC regulation.

4) FCC regulations are supposed to apply only to broadcast licensees. But if that is the basis for restricting profane signs, then FCC regulations become the new standard for speech by a non-licensee (the individual fan) in what I have defined as a public forum. It is the equivalent of saying that government can control what is said during a parade on the chance the parade could be covered and broadcast on the evening news.

5) The sign in my hypo did not use profanity. What do we do then?

Blogger Howard Wasserman -- 3/09/2008 5:57 PM  

My immediate instinct is incitement. There might be a stronger claim if instead of Cameron Indoor, the game took place at the Dean Dome and the obnoxious Duke fan scalped a ticket to the visiting arena (a common scenario in the Tobacco Road rivalry). The Brandenburg test calls for speech that causes imminent lawless action. When the student holds up his sign, in the heart of student section for sake of the hypo, very very bad things are likely to ensue.

Anonymous Anonymous -- 3/10/2008 1:30 AM  

But Brandenburg also requires that the speaker intend to cause imminent lawless action by exhorting people to act ("Let's go get those guys!"). Incitement does not cover the situation in which the imminent lawless action is likely to be an assault on the speaker. Otherwise, any unpopular speaker could be halted on grounds of incitement.

Blogger Howard Wasserman -- 3/10/2008 8:40 AM  

I agree with Howard's points regarding incitement. It's a Brandenburg issue and that has beren the prevailing law regarding political speech restrictions since 1969.

However, a small clarification regarding the FCC's revised definition of indecency of as "fleeting expletive." The second circuit did not address the constitutionality of that revised definition (although some judges, in dicta, questioned it); rather, it remanded the case because the FCC failed to provide adequate reasons for such a change of definition. The case is on remand (although the DOJ has filed a cert petition in the Supreme Court).

Blogger Mark Conrad -- 3/10/2008 9:11 AM  

What about under Feiner v. New York?

if he held up that sign in Chapel Hill, couldn't they arrest him and justify it by saying it's for his safety?

Anonymous Anonymous -- 3/10/2008 9:24 AM  

Maybe. Although Feiner is one of those cases that is dead without having been formally overturned (not unlike Beaurharnais, the group-libel case). The general modern view is that police are obligated to keep the peace by stopping those threatening to do violence, not stopping the speaker who is pissing them off. We take heckler's vetoes more seriously now than we did in 1950.

Blogger Howard Wasserman -- 3/10/2008 10:13 AM  

good. i thought the holding on feiner was stupid.

Anonymous Anonymous -- 3/10/2008 11:39 AM  

I don't think there is anything to do about the sign. While taking it to the extreme, the sign in the hypo is merely an example of "poor taste." Government shouldn't regulate taste. This is an area best left to "social pressure," as dicussed earlier. Let the cameras at the game get a close-up of the individual holding the sign and no doubt he'll have to leave the region to find a job, friends, afterwards.

Anonymous Anonymous -- 3/10/2008 2:40 PM  

The best cure for "bad" speech is not repression, but "good" speech.

Anonymous Anonymous -- 3/10/2008 4:16 PM  

this is off topic, but...

what if the crowd was chanting "F--k UNC" repeatedly.

would the network have a duty to mute the crowd under pacifica?

would that depend on if the broadcast was on ESPN (cable) or ABC(air)?

Anonymous Anonymous -- 3/10/2008 4:21 PM  

when i said "mute the crowd," i meant, electronically through a control center of some sort..

Anonymous Anonymous -- 3/10/2008 4:28 PM  

It would depend on broadcast v. cable and since the game was on ESPN, there would be no duty. Even as to broadcast, it also depends, as noted in earlier comments, on the fate of the "fleeting expletive" doctrine and how that applies to repeated chanting by a large crowd.

Oh, and one interesting twist on this: Assume that the FCC had power to regulate ESPN: The game telecast began at 9 p.m. Eastern; the ban on "indecent speech" (such as profanity) ends at 10 p.m. (indecent speech on the airwaves is lawful between 10 p.m. and 6 a.m.) So any duty ESPN could have had ended sometime early in the second half.

By the way, this is not off-topic at all. A school may very well argue that it must suppress student (oral) profanity or else its games cannot be shown on broadcast television. Not sure if that qualifies as a compelling government interest, but it makes for an interesting argument.

Blogger Howard Wasserman -- 3/10/2008 5:28 PM  

wouldn't a less restrictive method would be to electronically silence the crowd than to actually ban it?

Anonymous Anonymous -- 3/10/2008 7:17 PM  

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