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Tuesday, March 20, 2012
Two tales of cheering speech

I was interviewed yesterday by a reporter for The New York Times on the subject of cheering speech; he seemed resistant to many of my arguments and suggested that others would be, as well (he might be right about that last point). Anyway, here are two new examples of cheering speech for the record books:

Last night in Oakland, Golden State Warriors fans loudly and continuously booed team owner Joe Lacob during the ceremony to retire the jersey of Warrior great Chris Mullin. The boos continued despite repeated requests from Mullin and from Rick Barry, who also was on hand. Also yesterday, Southern Mississippi kicked five members out of the pep band and withdrew their scholarships after they chanted "Where's green card" at Kansas State's Angel Rodriguez during an NCAA tourney game last weekend.

Both incidents show fans being utterly obnoxious, to be sure. But it is hard to see why any of this does not and should not enjoy free-speech protection under current principles. Certainly the Warriors fans should be able to make their feelings heard about an owner who, in their view, is mismanaging the team.

The Southern Miss situation could get interesting, because the sanction was meted out by a state institution, so a First Amendment lawsuit is not out of the question. My best guess is that any lawsuit will fail, because a court would conclude that the band members speak "as the school" and the school can control who speaks (or cheers) on its behalf. The Fifth Circuit last year rejected a claim by a high school cheerleader who was kicked off the team for refusing to cheer for the basketball team member who, she alleged, sexually assaulted her. It's hard to imagine the band members having any better luck.

Update: A reader emails to say he reached out to the Southern Miss. administration and a spokesperson said there is no First Amendment violation because the students were punished only in their capacity as band members. Sloppily stated, but it does sound like they are setting up a "we get to choose who speaks as our official representative" argument.


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