First Amendment

Is There a First Amendment Right To Tell Your Team They 'Fucking Suck'?

Two brothers were arrested at a Giants-49ers game after cursing out and flipping off the Giants players. Now they're suing.

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TERRY SCHMITT/UPI/Newscom

Two brothers allege in a federal lawsuit that police officers working a Giants-49ers game last year in Santa Clara, California, violated their First Amendment rights and arrested them without cause, using excessive force in the process.

Patrick and Kyle Flynn's lawsuit, filed December 21 in the San Jose Division of the U.S. District Court for the Northern District of California, raises an interesting question: Does the First Amendment protect a sports fan' right to flip off their team in public and tell them they "fucking suck?"

Short answer: It's hard to tell.

Long answer: It depends on a variety of factors, including whether the fans were aware they had to follow a code of conduct, the ownership of the venue (Is it publicly or privately owned?), and the nature of their behavior.

Some background: The Flynn brothers, both Giants fans, had field-level seats when the 49ers hosted the Giants on November 12, 2017, at Levi's Stadium. Both teams were going through a rough stretch. The Giants, who had gone into the year with somewhat high expectations after making the playoffs the season prior, were one of the worst teams in the National Football League at 1-7. The 49ers were expected to be near the bottom of the standings, and they were, at 0-9. But in a battle of the bottom-feeders, the 49ers prevailed, defeating the Giants 31-20.

Disgusted by their team's poor play during the game, the Flynn brothers flipped off Giants players and yelled "you fucking suck" at them, according to the lawsuit. They were warned by Santa Clara Police Officer Nicholas Cusimano to stop, which they did for a time. Neither brother, the suit says, was "warned that further similar behavior would lead to ejection or arrest." In the fourth quarter, after the 49ers scored a touchdown to take a commanding 31-13 lead, the Flynns were back at it.

At that point, Cusimano called for more officers to help him eject both Flynns. Two officers approached Kyle Flynn, who refused to get up from his seat. One officer choked him, the suit claims, "despite no evidence that Kyle was a danger to himself, others, or the officers." The officers were eventually able to handcuff Flynn and take him to a holding facility beneath the stadium. While detained, he kept verbally protesting and was thus placed "in a total body restraint called a WRAP which immobilizes the legs and upper torso," according to the suit. Flynn was charged with resisting arrest, but the charge was dropped earlier this month.

His brother Patrick, meanwhile, "protested the officers' brutality by shouting at them and pointing at them," the suit says. He walked down the aisle to the bottom of the section and took a knee next to the railing that divides the seats from the field. The officers told Flynn he had to leave, and when he refused, they allegedly tried to pull him away from the railing. Two officers then appear to push and then pull Patrick Flynn over the railing and onto the field. The suit alleges that while Flynn was on the ground, officers struck and tased him before taking him to the holding facility.

Video footage taken by a witness and shared with NJ.com shows Flynn being push off the stands by police.

In the aftermath of the incident, Patrick Flynn was charged with several counts of battery on a police officer, as well as resisting arrest. It's unclear whether the charges are still pending.

Another fan involved in the altercation was Lauren Alcarez, who attended the game with the Flynn brothers. While police were trying to detain Patrick, one officer allegedly beat him on the hands with his baton. Alcarez knew that Flynn had recently suffered a broken left hand, and after unsuccessfully telling the officer to stop, she "grabbed at the baton," the suit says. In response, the officer "twisted the baton in order to free Ms. Alcarez's grip on it," then "elbowed Ms. Alcarez in the chest and shoulder, driving her backward." Alcarez was taken into custody as well and eventually charged with obstruction of justice.

Alcarez and both Flynn brothers accuse police of using excessive force to falsely arrest them, as well as battery and "negligent infliction of emotional distress." They may have a case, if the officers did indeed do what they claim.

As for Kyle and Patrick's First Amendment allegations? Let's just say there's no clear answer. The suit reads:

Patrick Flynn's and Kyle Flynn's comments and gestures directed towards the New York Giants players, as well as Patrick Flynn's decision to "take a knee," were protected First Amendment expression. Patrick Flynn's and Kyle Flynn's exercise of their protected First Amendment rights angered defendants. Patrick Flynn and Kyle Flynn are informed and believe, and thereon allege, that the officers subjected them to the above-described treatment in retaliation for, and as punishment for, their exercise of their protected free speech rights, and to deter them from asserting their First Amendment rights in the future.

As I alluded to earlier, there are several factors at play. For one thing, the Flynn brothers claim they weren't warned about being ejected. Yet the stadium's code of conduct, which is posted online, bans "obscene or abusive language and/or behavior." According to the stadium's "ejection process," violating that code is cause for ejection. The brothers admit to yelling "you fucking suck" and flipping off the Giants players. Such behavior might not be abusive, but it probably does rise to the level of obscene.

But is the code of conduct enforceable? That depends in part on the ownership of the stadium. The New York Times noted in 2012 that teams with "privately owned" stadiums are likely within their rights to ban certain fan behavior. "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," the Times added. "In that setting, a government cannot force citizens to surrender constitutional rights like free speech."

So who owns Levi's Stadium? According to one calculation, construction of the $1.3 billion facility was largely paid for with private funds, though 12 percent was publicly financed. More importantly, the stadium itself is owned by the City of Santa Clara, who leases it out to the 49ers.

This would seem to suggest the Flynn brothers were well within their rights to shout obscenities. But the exact nature off their behavior also matters. While the Constitution allows for free speech, its protections generally don't apply to fighting words, threats, or incitements.

The Flynn brothers don't appear to be guilty of any of those things. They may have been unruly (NJ.com suggested they were both drunk), but their actions probably wouldn't have provoked a violent response from the Giants players, who had been hearing some iteration of "you suck" all year.

Could their actions be classified as harassment? Possibly, though UCLA law professor Eugene Volokh (of Volokh Conspiracy fame) has argued that harassment laws are unconstitutional.

All this to say that it's hard to predict whether the Flynn brothers will win their lawsuit. According to the Times, there's not much legal precedent because 1) most fans who get ejected are not arrested and 2) related cases have been settled out of court by defendants who are wary of a precedent being set at trial.

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  1. “The brothers admit to yelling “you fucking suck” and flipping off the Giants players. Such behavior might not be abusive, but it probably does rise to the level of obscene.”

    I think you’ve got it backwards. It’s abusive (to the players), but doesn’t seem to meet the definition of obscenity:

    “(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.”

    https://www.law.cornell.edu/wex/obscenity

    1. So…where’s the prurient interest in rowdy fans saying their team sucks?

      Maybe Rule Whatever indicates that there’s a sexual kink for that sort of thing…

    2. Maybe the team in question, composed of pampered millionaire athletes, would better spend their efforts on not fucking sucking at football, as opposed to being upset over valid criticism of their failure.

  2. Does the First Amendment protect a sports fan’ right to flip off their team in public and tell them they “fucking suck?”

    YES.

    I have flipped off many police officers and the few who tried to do something about it got sued and lost.

    1. So brave.

      1. It is in this day and age. Do you not read Reason articles about bad cops?

      2. Anything to upset you and your butt buddies in blue.

    2. Are You a black man

  3. Whether a private venue has the right to exclude people for using profanity isn’t the issue the way I see it.

    The issue is whether they can be arrested for speech.

    If their presence is contingent on following a code of conduct, then they should be ejected from the venue if and when they violate that contract. The question then becomes whether they get the price of their ticket back.

    The question never becomes whether they should be arrested for speech. A crime is violating someone’s rights, and no one’s rights were violated because of that speech. Did they threaten to hurt someone? Did they perjure themselves? Did they threaten a juror? Did they extort someone? Did they conspire to violate someone’s rights? Did they defraud someone? Those are examples of people using speech to commit a crime–to violate someone’s rights.

    I don’t see where anyone’s rights were violated by these guy’s speech, and whether it was a public or a private venue is beside the point. If they were guilty of anything, it was trespassing.

    1. If their presence is contingent on following a code of conduct, then they should be ejected from the venue if and when they violate that contract.

      Not all contracts are enforceable.

      1. If venues don’t kick people out for destroying the enjoyment of other people at the venue, then all the other ticketholders probably have a case against the venue.

        That contract is enforceable.

        1. >>>destroying the enjoyment of other people

          damages?

          1. NFL tickets aren’t exactly cheap. Plus you have the cost of parking, and any other ancillary costs related to attending the event.

            1. okay. causation? it’s a football game with *new york giants fans* i’d be scared to *not* hear cursing at the giants. and no NFL stadium is expletive-free … reasonable expectation is cursing.

              1. continually standing and blocking views of the attendees behind them, the spectacle that followed, etc.. And there is a limit on cursing before someone is asked to cut it out or leave. You will find that is true just about everywhere.

                this is why the stadium security people just cut it short and eject them.

          2. damages?

            The price of the ticket, any money spent on tailgating, the cost of gas to and from the venue, etc., etc.

            People have the right to enjoyment of their ticket, in whatever terms the ticket specifies, and if the venue by their own inaction sells them a ticket without providing security necessary to ensure their enjoyment and they can get a jury of the peers to agree with them by a preponderance of the evidence, then they should get their money back.

            That’s basically fraud.

            I sold you a ticket to let you watch something, and then I effectively prevented you from being able to watch it.

        2. The stadium management can absolutely kick them out for being disruptive. Criminal charges for language and hand gestures is something else entirely.

          1. +1

            That’s what I was saying. It really shouldn’t be controversial.

            If you don’t want to get kicked out of a venue for interfering with other people’s enjoyment of the game, there’s an easy way to avoid that. It involves not interfering with other people’s enjoyment of the game.

          2. Was it the venue’s decision to remove the brothers, or law enforcement’s?

    2. I agree with what you said, but if someone breaching the contract is given notice that they have been ejected, and refuse to leave, it seem that he is now trespassing. Do you think police should be allowed to arrest determined trespassers?

      1. We’re they asked to leave? They allege they were not. Don’t know if this is accurate.

      2. Yeah, they should be forced to leave if they refuse to leave. Trespassing is a crime.

        Ownership of anything means you get to decide who can use it, when, how, etc. You may have a breach of contract if you’re contractually obligated to let someone else use that property, but that’s for the person accused of trespassing to sue for in court. When things are as they should be, the cops show up, figure out who the property owners is, and then ask the person who was asked to leave if they’ll leave willingly. If they leave, the property owner may decide he doesn’t want to press charges for trespassing. If the property owner has removed the accused trespasser without sufficient cause or in violation of a contract (like a ticket), then the accused trespasser should seek a remedy in civil court. Breach of contract is a civil matter, and this is effectively what people who do who become profane. They violated the terms of the contract, and therefore their rights as ticketholders to be on the property were revoked. They should have been asked to leave, and, if they refused, they should have been forcibly removed.

        In no case is their obnoxious speech a crime or cause for arrest. They violated a contract. That isn’t a crime.

  4. …related cases have been settled out of court by defendants who are wary of a precedent being set at trial.

    Let’s hope the Brothers Flynn remain drunk enough to see this through to the end. It would be interesting to get a precedent established.

    1. >>>settled out of court by defendants who are wary of a precedent being set at trial

      Nuthin’ shakin’ on Shakedown Street.

    2. Send them to New Zealand

  5. Will Kaeperdick go to bat for them? Oh no, because he sucks at batting too. Plus only blacks get abused by cops. Even a five-year old knows that.

  6. won’t somebody *please* think of the children?

  7. “The Flynn brothers don’t appear to be guilty of any of those things.”
    Well, they were clearly using “fighting words”, because a fight broke out.
    It says so right there in the article.

  8. Resisting a police officer is always a good idea.

    1. Resisting a police officer, right or wrong, is a good way to come down with a severe case of high velocity lead poisoning.

  9. including whether the fans were aware they had to follow a code of conduct,

    What if you’re not a fan but just there to watch the game? And how does requiring attendees to adhere to a code of conduct turn in to a crime if you violate it instead of reason for ejection?

    1. Bingo. The stadium al ost certainly should have ejected them, but outside of actual assault and battery charges this is not a criminal matter.

  10. Guy was placed in a total body restraint because he wouldn’t stop verbally protesting???

    1. Cops must always have the last word and also show what big men they are.

    2. The way I read it, was because he wouldn’t leave……you won’t leave when I say leave, isn’t the next step force?

  11. The Thought police is correct in ensuring these politically incorrect thugs never utter a word against these poor, oppressed and denied people who are making millions of dollars playing a child’s game.
    Hopefully, these two thought criminals will have their tongues removed with a bolt cutter as an example to others not to say what they think in our beloved socialist slave state.
    Otherwise, their behavior will only encourage others to say what’s on their mind, and their behavior will spread like wildfire with others mimicking them which will result in question and doubting our obvious betters’ hard work in oppression.
    Plus, unicorns will die by the hundreds if free speech is allowed.
    PETA would never tolerate such atrocities.

    1. The offense isn’t against the team, but against the surrounding fans, some of whom might be normal human beings who didn’t come to the game to listen to a couple of idiots scream obscenities.

  12. ” Is there a first amendment right to tell your team they ‘fucking suck”?

    I hope so. My home team is Tampa Bay.

    1. It could be worse.
      You could be living in Oakland.

    2. you could be a Detroit Lions fan.

    3. Remember when the Saints really sucked? The fans came to games with paper bags over their heads carrying signs that read “The Ain’ts”. There are ways and ways to get your point across.

  13. It was a very low brow thing to do! Definitely rude! But illegal??? Not in my book unless we get to cry hate speech over every little critical comment!
    https://aladyofreason.wordpress.com/

    1. Your blog has very generic conservative talking points. Your ‘guests’ only have first names and they’re indistinguishable from each other.

      It’s probably a botsite putting in extra verbiage to avoid detection.

  14. I was shocked to read that this didn’t happen at an Eagles game in Philly.

    1. I got threatened out of the blue at a Bucs games in Detroit (back in the Central division days}. Lovely place.

    2. The last Eagles game I was at there were two guys jumping up and down and yelling out of excitement because the Eagle were winning, (true story) they were both removed from the game for disrupting everyone around them. So I guess it doesn’t really matter if you are yelling that your team sucks or yelling out of support, either way it disrupts the people around you. They were both very drunk and did not put up a fight while being escorted from the game.

  15. There’s no question of obscenity in the legal sense. However, even in a public forum, there are time, place, and manner restrictions.

  16. This can only be here as filler because their language was over the top. Then again they seem to be nasty people who feel the need to be nasty to someone who is having a bad day.

    I think they should have just put them in a room with the players and let them kick the shit out of them, Imean that is what I would do if someone was screaming at me like that.

  17. It seems that for the duration of time that a venue is under the control of a lessee, as it would have been in this case, it’s a private venue and the First Amendment doesn’t apply. If, of course, the city were holding the mayor’s inauguration at the stadium, that would be a public venue during that time and the First Amendment would apply (with all the usual caveats).

    Suppose a city park has a multipurpose room constructed entirely at taxpayer expense and they lease it under standard terms to an Evangelical Christian Youth Group for a meeting that is open to anyone. That wouldn’t be a violation of the Establishment Clause as the property is under the control of the Christian group, not the government. If, however, the city held its own “Evangelical Christian” meeting in the same room, it would likely violate the Establishment Clause. Why is this case different than the stadium?

    Ejection seems like an order, made by an agent of the lessee/owner, to leave the property. If the person remains, then they become guilty of the crime of trespass and can be arrested, charged, tried, and convicted by the criminal justice system. If the order violated the contract with the ticket holder, then that’s a civil issue. The police generally don’t decide if a business’s request for a patron to leave the property is “within the contract” as that’s not an issue for them to resolve.

  18. My bet: They win. It’s Kalifornia. If they were criminal aliens, it would be a slam-dunk.

  19. “Two officers approached Kyle Flynn, who refused to get up from his seat. ”

    And there is where the actual trouble starts.

    Resisting officers and not following orders.

    When dealing with police that you think are in the wrong, don’t be a retard and resist or argue. They can make up whatever they want if there aren’t witnesses or cameras that are on. Simply do as you are asked and then come after them or their jobs legally with a lawyer.

    In this case, the officers’ reasons were likely in the wrong, though we don’t know if they actually thought that these guys might be trouble…which they were right as Kyle, per that quote I dropped, escalated the situation by being a dip-shit.

    Look at it from the police’s perspective – if you have the balls the give the police attitude don’t you think that they figure that you have even a softer trigger for any Joe Public that you think gives you the business?

    Look at that video around 0:15 seconds – does that guy look like he is cooperating?

  20. “Two officers approached Kyle Flynn, who refused to get up from his seat. ”

    And there is where the actual trouble starts.

    Resisting officers and not following orders.

    When dealing with police that you think are in the wrong, don’t be a retard and resist or argue. They can make up whatever they want if there aren’t witnesses or cameras that are on. Simply do as you are asked and then come after them or their jobs legally with a lawyer.

    In this case, the officers’ reasons were likely in the wrong, though we don’t know if they actually thought that these guys might be trouble…which they were right as Kyle, per that quote I dropped, escalated the situation by being a dip-shit.

    Look at it from the police’s perspective – if you have the balls the give the police attitude don’t you think that they figure that you have even a softer trigger for any Joe Public that you think gives you the business?

    Look at that video around 0:15 seconds – does that guy look like he is cooperating?

    1. He isn’t and you’re right but…see my comment below.

      When I took my daughter to see the Tampa Bay Lightning game a few years back we left the game walking behind a couple of preppy guys who were drunk. One of them was mouthing off left, right and centre – nothing bad outside really being obnoxious – and he must have said something to the cops who were just leaning on the cars keeping order.

      Well, one of the cops reacted with a display of authority that left us unnerved. The way he responded and got in the guy’s face was frightening to the point I grabbed my daughter’s hand and kept walking. I feared the cop more than the idiot. It was a gut instinct. The cope was ESCALATING it needlessly.

      Here, in Montreal, our cops can be just as unprofessional but you’re more likely than not gonna get a polite and stern reprimand – and if you’re funny, they may even laugh along while they give you the tongue lashing.

      They understand it’s a public space.

      Just my impression.

  21. Watching this closely. If they win and get a cash settlement, I will be down at the local stadium yelling my team “fucking sucks” and flipping them off, hoping to be arrested.

  22. Everyone seems to be missing the point and muddying the waters here.

    They weren’t arrested for shouting to the team that they “fucking suck,” They were arrested because when the stadium attempted to eject them, they resisted.

    The stadium is well within their rights to eject the two brothers, and the brothers have no right to resist anyone at that point: ushers, security guards, or police officers.

    They’ll lose, and rightfully so.

    1. I’ve been to soccer stadiums in Europe where fans can get, erm, out of control. Even when they resist being taken out, the cops restrain and cuff them with the right amount of force. They don’t gang up and beat them to a pulp and taser them for good measure.

      If you resist, absolutely, face the consequences.But resisting shouldn’t mean or translate into getting a beating or worse. I just don’t get the punches.

  23. i don’t give a shit they were rude and drunk. YOU DON’T PUMMEL A CITIZEN. Being a cop doesn’t give you that right just because they fucken resisted.

    Jesus, the barbarity of it all.

  24. Freedom of speech is great. It’s the first and most oft utilized of the bill of rights. But there are limits…………………

    What about the rights of all the nearby similarly situated fans to enjoy watching the game without some drunken baboon’s arse blocking their view and not being able to hear anything but foul comments that they really don’t want their children or mother’s to hear?

    I hate it when protesters block my access on public facilities to go about my business. Their “protest” has no more status than my personal business.

    When it escalates to destruction of property, whatever it takes to protect the property, public or private, should be allowed. That includes store owners shooting creeps who start breaking windows and looting.

    Such a forceful reaction would put civil disobedience back to what is constitutionally protected: The right to peaceably assemble and redress government. Not the right to destroy, trash and wage low level warfare against anyone and everyone like a five year old acting out. (Full disclosure: I’m a child of the sixties and got sick and tired of having people put their own beliefs and actions in front of everyone else’s while justifying it with exclamations of pious virtue.)

    Thoreau himself said that civil disobedience required that one would be willing to be jailed and tried for conducting it.

  25. The fucking sucky 49ers fucking suck ass that sucks on an ass that’s fucking.

  26. Does the First Amendment protect a sports fan’ right to flip off their team in public and tell them they “fucking suck?”

    Short answer: It’s hard to tell.

    Long answer: It depends on a variety of factors, including whether the fans were aware they had to follow a code of conduct, the ownership of the venue (Is it publicly or privately owned?), and the nature of their behavior.

    No, this is BS. Ejected from the venue for refusing to follow the code of conduct, sure. But arrested? No. A venue’s code of conduct does not have the force of law, and “You fucking suck.” is definitely protected speech.

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  28. How about if everyone watched games like golf fans do ? in silence. Players might appreciate being able to concentrate on kicking a crucial field goal, getting that crucial base hit, making that last second free-throw, etc. in peace and quiet instead of being distracted by cheering, screaming fans.

    1. Actually, silence throughout the stadium just might be the most effective response to the team taking the field, with golf claps if they score a touchdown or field goal.

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