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Tuesday, March 06, 2007
Banning Boo Birds

The Washington Interscholastic Activities Association is considering a rule that would ban booing, negative comments, and offensive chants at high school sporting events.

I previously have written on whether any type of fan "cheering speech" can be regulated or prohibited at college and professional sporting events. My conclusions in those contexts has been (not surprisingly to those who have been reading me the past few months) that such prohibitions violate the freedom of speech. They also are practically unenforceable, at least in a fair, neutral, and even-handed way. And they are a really stupid idea.

As to banning booing and negative comments: This would run afoul of the First Amendment's basic prohibition on rules that discriminate based on "viewpoint"--rules that permit speech on a topic from one point of view while prohibiting speech on the same topic from a different point of view. Allowing me to cheer for and praise Player X on Team A, but prohibiting me from booing or criticizing Player X on Team A obviously discriminates against one point of view--the negative or critical one. Government cannot require people to "keep things positive."

As to offensive chants: This breaks down on the problem of "offensive to whom?" Is the level of acceptable cheering whatever is acceptable to the most sensitive/least tolerant person in the audience? Acceptable to the school administrator? To the usher?

Plus, much offensive speech is subtle enough that those in charge do not actually recognize that it might be offensive. My favorite example (which I always run back to in all my articles) is what happened when Texas Tech played at Kansas in men's basketball in 2004, a game played a few days after Tech Coach Bob Knight's infamous altercation with the university chancellor at a salad bar in Lubbock. During the game, Kansas fans chanted "salad tosser" at Knight and most listeners (including KU Coach Bill Self and university administrators) praised the students for their cleverness. But go look-up the term salad-tosser as a piece of slang. Think the students knew this when they picked out that phrase?

The point is that prohibiting "offensive speech" is both over-inclusive and under-inclusive. It is over-inclusive because officials tend to get overly sensitive and thus to over-regulate. It is under-inclusive because more subtle (but not less offensive) examples will be missed.

All that said, the fact that this is occurring at the high school level potentially (likely?) changes the analysis. High schools are able to regulate student expression (certainly in school-sponsored and school-funded activities, if not beyond) in ways that would be unacceptable and impermissible on a college campus or in society at large. This includes prohibiting particular points of view on some subjects from being presented within the school confines.

That is why it is important to consider, First Amendment rules to one side, the stupidity of such policies. Whether or not Washington officials could do this gives way to whether Washington should do this. My answer is they should not.


I think you're right - public schools would be able to ban booing. Under Hazelwood, a school can engage in viewpoint discrimination in schools-sponsored activities if it furthers legitimate pedagogical concerns. Thus, in a classroom, a teacher could probably limits comments on another students work to praise on the theory that criticism would discourage students from taking risks in their writing. (Admittedly a silly rule, but probably allowed.)

A basketball should be no different. Although it is an extracurricular activity, booing probably has the same negative effect on players as in-class criticism of students' work. Therefore, schools should be able to regulate it in the same manner.

There's also little doubt that public schools would be given wide latitude to limit offensive chants under Fraser, concerns about under or overinclusiveness notwithstanding.

Anonymous Anonymous -- 3/06/2007 7:11 PM  

I agree with you and Anonymous--Hazelwood v. Kuhlmeier has language that would support the school's regulation, if it construes "collegiality" a legitimate pedagogical concern, e.g. a negative harassment free learning environment:

“A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school…because the school was entitled to ‘disassociate itself’ from the speech in a manner that would demonstrate to others that such vulgarity is ‘wholly inconsistent’ with the ‘fundamental values’ of public school education."

However, I'm troubled about the slippery-slope-ness of this. While I'm not a First Amendment absolutist, I've backed away from some CRT theories for aggressively regulating hate speech (see Matsuda, et. al, Words that Wound; Charles Lawrence, Unconscious Racism). However, hate speech is at at least very serious (particularly symbolic hate speech or "fighting words") and could be considered more tortious than "booing" against the opposition. To regulate the latter would diminish the seriousness of the former.

There is enough opposition against campus hate speech codes, which do serve valuable goals of making students feel safer in their learning environments--this goes too far into ridiculousness.

Blogger Dana -- 3/06/2007 11:54 PM  

I agree with Dana that I generally favor hate speech codes, but I feel any "anti-booing" measure is doomed to fail. Howard notes (hilariously) the "salad-tosser" remark--and how can one ban sarcasm? A chanted "you're so awesome," with gagging noises, would not be prohibited (I am a little embarassed that I automatically had to think of a way to get around the proposed rule).

Students are always going to be ahead of such prohibitions, layering their remarks in code and pop culture references. My dad called me excitedly the other day about the UK student sign picked up on ESPN: "Tim Hardaway Hates LSU." That's an incredibly subversive (and darkly funny, no matter my feelings against Hardaway) statement that would be difficult to regulate.

Blogger gorjus -- 3/07/2007 11:09 AM  

It is a thought that sounds good in principle but will never pan out.

During a game, there are times when booing an official for a terrible call is unavoidable. That being said, I don't see a problem with that because the crowd isn't fighting or causing chaos, rather they are all in agreement as to what is going on in the game.

In the case of booing a player for making a bad play, I agree the whole "keep it positive" thing would be a good idea. However, most of the time fans cheer on their own players even when something bad happens. This is where high school is different than college and professional sports. In high school, there are very rarely personal attacks on individuals, while in college and the pros players are at the fans mercy.

As far as chants of "airball" and things of nature, that is more of a fun traditional activity that the crowd participates in and is not so much a personal attack.

If you take away these priviledges, you take away from the game. As a former player at the high school and college level, I fed off the crowd and loved every minute of it. Turning the crowd into a bunch of cheerleaders takes the fun out of rivalry games and playing on the road in hostile environments. If that happens, then the games are less exciting due to the lack of emotion and excitement thus making them less desirable to attend.

What happens then if attendance goes down? Somebody loses money, and don't pretend like money doesn't play the major factor in whether things like this ever ultimately happen.

Anonymous Ron Jumper -- 3/10/2007 3:38 PM  

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