Sports Law Blog
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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
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.