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.



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 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 ( 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.