In honor of the Major League Baseball season being two days old even though the first North American game won't be played until next Wednesday, here's a free-speech brain-tickler, as posed by today's New York Times:
Is a fan's protest — known in some sports law circles as fan speech or cheering speech — a form of expression protected by the First Amendment? [...]
The question is apparently still open to debate, despite more than 150 years of American public sporting events. Legal experts say few precedent-setting court rulings deny, interpret or establish a fan's right to rail at a referee. Hostile or excessively disorderly fan behavior is not tolerated by security officials at games, or for the most part by the court system, because it is deemed dangerous or disruptive to the group. But in the middle of a sporting event as fervent as the N.C.A.A. tournament, with passionate crowds and high stakes, what exactly defines disruptive? [...]
Classic public forum free-speech issues [...] would generally not be applicable at privately owned facilities hosting games, like college basketball games at private universities. Privately owned teams can also contend that a fan's purchase of a ticket is in fact a contract with the team to conform to a code of conduct, which could include a prohibition on excessive yelling at the officials. But many stadiums and arenas constructed with some public financing, or built on state land or land operated by a municipal authority, could be viewed as public entities. In that setting, a government cannot force citizens to surrender constitutional rights like free speech. [...]
[T]he legal precedents [...] are hard to come by, perhaps for two contrasting reasons, lawyers said. Fans who might have good cases for seemingly unjust ejections are rarely arrested; they are only removed from the event. They may be upset afterward but not aggrieved enough to follow through with a lengthy lawsuit. The other reason is that when a fan does file a civil suit over an ejection, it is almost always settled before a trial because team owners and arena owners fear a landmark case establishing fans' rights.
"Imagine if a higher court took on such a case?" said Mark Conrad, an associate professor of sports law at Fordham University's School of Business. "Facility owners would be quaking over anything like that because it could open the floodgates."
Public subsidies, tax breaks, and eminent domain takings on behalf of professional sports franchises constitute one of the most egregious and persistent strains of bipartisan corporate welfare in this country, as Reason has been telling you for decades. It would make my heart do an Ozzie Smith backflip to see the Selig/Paulsons of the world get bitten on the ass–through a free-speech challenge, no less!–for fattening up on the public teat.
Ah, you ask, but what's the connection between fan behavior and the prison-industrial complex? Don't worry, Ramblin' Bill James has a theory:
There are three stages in the history of baseball. In the first stage, which ended about 1920, if you stood up in the front row and bellowed, "Hey, Cobb, I hear your mudder used to work bachelor parties," Ty Cobb would come over to your seat and personally introduce you to his knuckles. In the third stage, which began about 1983, if you stand up and scream, "Hey, Pujols, I hear your mommy used to work bachelor parties," three men with walkie-talkies will immediately surround you and escort you off the premises. But in the intermediate stage, you could take off your shirt, stand on your seat, and yell any goddamned idiotic thing you wanted to, and nobody would do anything except the beer vendors, who would come by your seat every inning to sell you as many cold ones as you wanted to buy. [...]
In his 1929 book 20,000 Years in Sing Sing, Warden Lewis E. Lawes says that his young daughter, who was born inside the prison, knew all of the prisoners and was allowed to wander freely around the prison, with a few obvious out-of-bounds penalties. Think about what a different world that is from a modern prison. If I could divert your attention for just a second with a serious question: How did we slip backward like that? How did prisons become these violent hellholes that they now are, so that it is unimaginable to have an 8-year-old girl wandering the hallways of a maximum-security lockup?
It has to do with the three stages I was talking about before. Prisons in that era were in Stage One: If a prisoner acted belligerently toward the guards, the guards would pull out the rubber hoses. The Warren Court put an end to that era, which was a good idea, I suppose, but that pushed us into Stage Two, during which baseball fans would scream at the players and nobody would do anything about it. The inmates now can abuse the guards, and the guards don't really know what to do about it other than to transfer the offender to an isolation unit when it gets too bad. What is really needed is not a program of reacting to the worst abuse the prisoners can come up with, but a program of reacting swiftly to small infractions. But prisons have pushed the living conditions of the convicts down as far as the courts will allow them to be pushed, so the wardens have little operating margin to react to small infractions.