The Political Content of Cheering Speech

Is it me or do there seem to be an increasing number of instances of sports teams attempting to control fan cheering speech? I blogged about two recent examples here and here and I wrote at length about it a year ago here.

Now via RSLFM, a blog devoted to the MLS's Real Salt Lake, comes this report (on the home page, click on 6/9/07 to get to the page). Last Thursday, RSL played the People's Republic of China in a friendly at Rice-Eccles Stadium on the campus of the University of Utah. Several fans showed up with flags from Taiwan and Tibet (see photos above) and banners reading "6-4" (a reference to Tienanmen Square). During the second half, several players from the Chinese team refused to continue playing until the flags and fans were removed. Which they were; RSL team officials, apparently assisted by University of Utah campus police, told the fans to put the flags away or get out of the stadium. The RSLFM link has video. A full discussion of the controversy on one local media outlet can be found here; the outrage among some seems to be that the Chinese government is dictating what speech is permitted and what is offensive in Salt Lake City.

Cheering speech is not limited to "insignificant" cheering, jeering, and heckling about the game and players. Rather, cheering speech can, and often does, include pure political expression that is uniquely appropriate at a sporting event. Here, we have a clear protest against the repressive policies of the Chinese government towards Tibet, Taiwan, and its own people. Sports is immersed in political and social overtones in most situations. That is even more so in this instance, given that a representative of the Chinese government was playing in the game. The grandstand should be the ideal forum for this protest and this expression.

This also shows the problem with fan-conduct codes, such as the one in Seattle, that prohibit "taunting." At some level, that is what the fans were doing--flaunting the symbols of China's human rights abuses and heckling the players for their connection to the Chinese government and those policies. Fans were, in part, being provocative in displaying these symbols at the Chinese players, coaches, and officials. But given the overtly political content, the expression of such views cannot be prohibited consistent with the First Amendment.

RSL has defended its decision, arguing that it had the power to remove fans who "disrupted" the game. But the "disruption" resulted from several Chinese players refusing to play until the offending speech and speakers were removed. The general First Amendment principle is that government cannot prohibit speech simply because some listener will be offended or annoyed by that speech--especially when we are in the realm of pure political protest.

Which brings us back to the key issue: State action. Rice-Eccles Stadium is a public facility (owned by the State of Utah), RSL is a private entity renting that facility for what it terms a "private event." In arguing that teams such as the Yankees and Mariners become state actors in operating publicly funded and owned stadium, my paradigm was the typical major-sport situation: The stadium was built specifically for the team's long-term and exclusive or near-exclusive use, with the team given substantial or total control over, and benefits from, the stadium. I did not have in mind the situation here: RSL is not the exclusive or even predominant tenant, it does not appear to be a long-term tenant, and it does not use the stadium on the sort of favorable terms that, for example, the Mariners use Safeco Field. Perhaps this situation represents a middle ground between exclusive use (the Mariners at Safeco Field) and one-time use (a private organization given a one-time permit to hold the annual Gay Pride Parade down city streets), requiring some line-drawing as to where on the state-action line the team should fall along a continuum. This will be a detailed factual inquiry, looking at how often and how long the team uses the stadium and the terms and conditions of that use.

Alternatively, this situation may be more analogous to the private entity with a permit to hold a parade or rally in public spaces--I would not suggest that such a private entity becomes a state actor in all cases.

But this case presents one additional factual wrinkle--apparently, University of Utah police were directly involved in carrying out RSL's demand that the flag-wavers be removed. This fact is important in two respects. First, direct police participation enhances the argument for "entwinement" between the team and the government under Brentwood, since the team's decisions in the management of a public space are being carried out directly by an arm of the government. Second, direct police participation may mean it does not matter whether RSL is a state actor because it was the police (i.e., the State) that carried out the First Amendment violation by removing the fans for their expression, potentially subjecting the officers themselves to First Amendment suit by.

Police involvement also knocks out RSL's argument that this is a private event that RSL can control. This is true for what occurs on the field, but less true for what occurs in the grandstand that has been opened to the public for the specific purpose of engaging in expression. Return to the parade analogy: If a gay rights group obtains a permit to hold the Gay Pride Parade, it can control who participates in the parade and what gets said as part of the parade. But it cannot control what happens along the parade route. I believe there would be a First Amendment violation if the parade organizers insisted that police remove from the crowd an individual carrying a "God Hates Fags" banner.

But let's put to one side state action and whether RSL could be legally liable for removing the fans. Let's consider the broader question of whether a private entity should restrict fan speech in this context, even if it can. The grandstand is a forum designed and opened to the public for cheering speech. A proper respect for the principles and ideals of free expression should command teams to recognize the full range of expression in that category and to allow discussion, particularly the political discussion, in the fan spaces to be "uninhibited, robust, and wide-open."

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