Politics, Expression, and Basketball Arenas

True Hoop (which, having asked Mike to guest-post, must be regarded as the official non-law basketball blog of the sports-law world) reports on a story from The Stranger (which I gather is Seattle's weekly independent newspaper):

The campaign finance records I’ve reviewed show that Sonics/Storm co-owner Tom Ward has contributed $475,000 to Gary L. Bauer’s Americans United to Preserve Marriage

And another Sonics/Storm co-owner, Aubrey McClendon, contributed $625,000.

During the last two election cycles, Americans United distributed $ 1.3 million, of which Ward and McClendon contributed $ 1.1 million. The group opposes same-sex marriage, which it insists "cheapens" the institution.

Neither Ward nor McClendon is the managing partner within the ownership group; that is Clayton Bennett, who apparently has not made such contributions. The Seattle Post-Intelligencer picked up the story here.

This new controversy raises a number of interesting issues.

First, there is the connection to Tim Hardaway's comments and the NBA's reaction to them. Should the league take similar action against these Sonics owners? As a private entity, the league could sanction anyone involved with it, without running afoul of the First Amendment. But I would be uncomfortable if the league began controlling what groups and ideas players, owners, and other league members can promote outside of their basketball roles. And Hardaway was dismissed from performing an official function in which he was speaking and acting on the NBA's behalf. Certainly the league has greater control over that than over what an active player says apart from his basketball functions.

But this leads to a second issue. If leagues are going to police what players, owners, and others say, do they need to be consistent? Is what Hardaway said that much worse than what Ward and McClendon are (through their financial support) advocating, such that you can punish Hardaway but not Ward and McClendon? Substantively, there is no difference between saying "I hate gay people" and "I want the law to deny gay people the same basic rights that I (and others like me) have." The former reflects an angrier, more emotional idea than the former. But both are anti-gay-rights points of view. In my view, both are fully protected expression and neither should be the basis for league-imposed punishment. But we too often get caught up in the way things are said, punishing an offensive way of saying something, while ignoring statements that express ideas that are just as troubling when they are stated in a softer way. I am not sure you can justify punishing one and not the other (although again, my preference is that you punish neither).

Third is the issue of how the controversy will affect the Sonics' efforts to secure $ 300 million in state and local funding for a new arena. Can legislators take into account the politics of some of the owners in deciding whether to approve this funding? On one hand, an instinctive notion is that government should not decide whether to award benefits on how a recipient exercises his First Amendment rights. Although doing so in this context would not, strictly speaking, violate any one's First Amendment rights, there is something troubling about public officials voting some way because of the recipient's unrelated political viewpoints.

On the other hand, they may not be so unrelated. The Sonics are asking for (nee, demanding) a substantial amount of public funds towards an arena that the team insists is essential for the team to survive and thrive financially. It also argues that building the arena (and thus keeping the team in Seattle, rather than relocating to Oklahoma City) brings economic, social, and cultural benefits to the community (putting to one side the overwhelming consensus among economists that no economic benefits exist). But the arena also benefits the Sonics owners, Ward and McClendon among them--they have to spend $ 300 million less of their own money to gain this necessary asset; plus the arena almost certainly comes with a highly favorable lease that allows the team (i.e., the owners) to keep much of the arena-derived revenue (naming rights, seat licenses, parking, concessions, etc.).

Now, could a conscientious state or local legislator decide not to vote for a project that puts more money in the hands of two individuals who likely will use some of that money to advocate public policy positions that are anathema to the great majority of her constituents? I think the answer is yes.

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