Do You Have a Free Speech Right to Heckle Athletes, Coaches, and Referees at Publicly Financed Stadiums?


He no batter!

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. […]

Banned from heckling due to that whole imprisoned-for-life thing

[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.

This image is topical to the underlying post, I swear!

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. […]

There's a connection, somewhere….

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.

NEXT: John Stossel on Regulations That Create Useless Jobs While Stifling Innovation

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  1. On Tuesday, according to KCTV 5, a 13-year-old Kansas boy was set on fire by two 16-year-old boys. The boy was rushed to Children's Mercy Hospital after his face and hair were set ablaze.

    The boy was walking home from East High School and actually made it to his home two blocks away on Quincy Avenue when he was assaulted. One of the boys prevented him from entering his house, and the victim said that the second suspect grabbed a red gallon of gasoline and told him, "This is what you get."


    1. The Kansas City Police Department said that when lighter sparked the gasoline it "produced a large fire ball burning the face and hair." They were particularly worried about the boy's eyes and lungs and also stated that this was a particularly "heinous crime." They are also considering if this was a hate crime because all that is known is that the victim is white, and the two suspects are black.

      1. No one has been arrested as of yet, but the parents obviously plan to go after whoever it was who attacked their son.

        We'll take care of it.

      2. This was not an assassination attempt.
        Nothing to see here. Move along.

    2. Come on now, folks. Why are we contributing to this Simmering Race War? We need detente, not more fuel.

      1. Fuel? Really, Rev?

    3. Do You Have a Free Speech Right to Heckle Athletes, Coaches, and Referees at Publicly Financed Stadiums?

  2. Please don't stop Mets fans from chanting Larry. I think Chipper Jones' best numbers are at Shea Stadium.

  3. I think you also have to consider the fact that sentences are longer these days, and with all the restrictions on early release, prisoners have a lot less to lose in general. If I have a 3 year sentence, I have realistic hopes of getting out and resuming my life. 15 years, not so much.

  4. 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.

    Not just no, but hell no. If anyone takes this view, it's the Slippery Slope to "everything is public". Did you get a tax break last year because you are married? Hey, guess what! you're "public" now. Do you benefit from ROADZZZ?

    you get the drift.

    1. This is a good point. After all, baseball's anti-trust exemption is constantly invoked by Congresspeople as causus belli for mandating whatever they want (though they rarely do more than tongue-lash).

      1. I'm not sure it is a good point at all.

        These sports teams are clearly getting subsidies, not just normal tax breaks from the taxpayers.

        Also this is what happens when you sell yourself to the state. This would discourage people from wanting to use public funds.

    2. To me, it doesn't matter if it's public or not (although I agree with your slippery slope). Fucking pussy ass athletes and refs need to put their big girl panties on and get over being taunted. As long as no one is physically assaulting them.

    3. You have the Randian "driving is a privilege" doctrine on the basis of the government owning the roads (and setting the rules as it likes, including making you drive dressed like Ronald McDonald if it chooses to do so), vs. the Rothbardian "driving is a right" doctrine on the basis that government money (force-collected taxes) "tainted" the government's property rights beyond remedy. However, wouldn't "time, place, and manner" restrictions would still apply (as generally applied to public speech)?

  5. Without heckling to make them interesting, baseball and soccer would be at a competitive disadvantage wrt interesting and exciting sports.

    1. And yet, the Dodgers just sold for over two billion dollars....

  6. But do we have a First Amendment right to throw flaming bags of dog shit at Jim Irsay? Let's stick to the important stuff.

    1. Irsay made the right move. I'm sure it was a painful move for both Irsay, and Manning. But $28M for a 36 y.o. QB with 4 neck surgeries? When the team was sitting with the 1st pick of the draft and two decent QB's to consider?

      Irsay made the right move.

      1. Right move would have been to trade him earlier so you get something out of the deal.

        1. They should have traded the pick... Andrew Luck isn't going to be worth much with that aged, awful supporting cast.

  7. 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.

    I wonder what the 3rd baseman with bleeding spike holes in his shins said about Cobb's mudder.

    But, as much as I like idiots when they shut up, I hate the notion that responding to mere words with violence represents some sort of admired toughness. Don't let the fact that I absolutely do not cut a intimidating figure water down my point, thanks.

    1. and yet "fighting words" do exist

      1. They surely do. But I'd like to think that decreasing the count of those words (to zero, if humanly possible) would be an admirable goal.

        1. decreasing the count of those words (to zero, if humanly possible)

          rainbows and unicorns

      2. Only for immature assholes.

        1. boo ......... hoo

          1. When you go to jail.... Boo hoo that. 🙂

    2. I've had this discussion before. The only "mere" words I think justify force would be ones that were actual threats.

      1. You owe us 99.9% of your income ... and sexual access to your wife, if she is interested ... and your children, if they are interested.

      2. IIRC didn't Fluffy argue that an insult can be considered an expression of consent to fight?

        And robc said that attacks on honor are force.

        Redefining words -- not just for liberals anymore.

        1. Yes it is scary. Threats don't mean shit, only physical attempts should be considered force.

  8. Y'know, for a borderline commie pinko, Matt sure does like his baseball.

    Why he feels the need to inflict his peculiar obsession on the rest of us is the really baffling part. Isn't baseball something best not discussed in polite company?

    1. Jesus, going after both Soccer and Baseball in one thread? Are you guys trying to put me back on welfare?

      What kind of libertarians are you? 🙂

  9. There's nothing to stop people from bargaining away their constitutional rights in exchange for access to a ball game.

  10. I don't see much of a free speech issue with stadium heckling, unless I don't understand the property law issues, which I concede is possible.

    Let's say an arena is built with public money, then leased to a basketball team so that it may conduct basketball games. In the off-season and in between games, the stadium is leased to other groups for political conventions, business trade shows, and religious services. Does anyone think that those rent-paying temporary occupants don't have the right to exclude people and statements that they don't want to see or hear?

    1. A courthouse is built with public money, but they have rules of decorum in those places (except Wisconsin, maybe).

      Anyway, for every 3 million well behaved fans there's always a Robin Ficker. Actually, there was only one of him.

  11. If fans were barred from heckling and generally making asses of themselves, Philadelphia Eagles home game attendance would top out at 500.

  12. I don't understand the point of quoting the valueless ramblings of Bill James.

    It's a goddamn baseball game! The snobs that are offended by hecklers can go sit in the family section or the skyboxes.

    1. I'm going to testify before Congress and stop the egregious assault on my livelihood going on in this thread.

  13. I really couldn't care less about PeytonGatePlace.

    That fucker Irsay bent the city of Indianapolis and the state of Indiana over (with the eager assistance of their elected representatives) and fucked them in the ass, hard.

    Somebody should leave that fucking crook in a dumpster.

  14. Behindertsein ist sch?n

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