My arguments about fans' speech rights depend on the principle that fans do not, to paraphrase the Court, "shed their constitutional rights" at the stadium entrance. Thus, I have argued in prior posts and comments, it should not matter that teams prints warnings about fan behavior, including speech, on tickets or that fans know in advance that, by voluntarily entering the ballpark, they subject themselves to limits on their speech. Stadium operators cannot condition access to the ballpark on a waiver of constitutional rights.
Well, in Johnston v. Tampa Sports Auth., the United States Court of Appeals for the Eleventh Circuit disagreed with me. (H/T: Howard Bashman's How Appealing; Howard's column argues why the court got it wrong). The court rejected a Fourth Amendment challenge to pat-down searches conducted on all fans entering Tampa's Raymond James Stadium. The court held that the plaintiff, a season-ticket holder, consented to the search by going to the game despite advance notice that he would be subject to a search (the Bucs informed all season-ticket holders of the search policy) and by submitting to the search and entering the stadium, although he did voice an objection to the search.
In lengthy footnote five, the court expressed doubts about whether there could be a constitutional violation, even absent consent. The ticket gave the plaintiff a revocable license to enter the stadium, a personal privilege that could be taken away or burdened by the property owner at any time and for any reason. The court distinguished its 2004 decision in Bourgeois v. Peters, which held that a municipal policy of conducting magnetometer searches on all participants in protest rallies on public streets violated both the First and Fourth Amendments. The Bourgeois court had stated the following:
The ability of protestors [sic] to avoid the searches by declining to participate inthe protest does not alleviate the constitutional infirmity of the City’s search policy; indeed, the very purpose of the unconstitutional conditions doctrine is to prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights. Similarly, the existence of other vehicles through which protestors could voice their disagreement with the SOA (e.g., letters to Congress) does not in any way alleviate the unconstitutional conditions problem.
The Johnston court distinguished Bouregois in footnote five as follows:
The search reviewed by the court in Bourgeois impeded individuals from gathering on a public property–city land outside of the Fort Benning installation–to engage in political protests protected by the First Amendment. . . . While the protestors in Bourgeois had a right to protest on public land that the magnetometer searches burdened impermissibly, Johnston had no parallel right to enter the Stadium for a Buccaneers football game.
This distinction ignores that the stadium grandstand is a so-called designated public forum, opened by the government (the Stadium Authority owns and operates Raymond James Stadium and controls security) for cheering speech. The rules of access to a traditional public forum, such as public sidewalks, and to a designated public forum, such as the grandstand, are the same; government cannot unconstitutionally condition access to either. Nor should it matter that Johnston needed a ticket to get into the stadium. Government often requires people and groups to obtain permits--i.e., tickets--to speak or hold rallies on public streets and sidewalks. Such permitting programs generally are valid, so long as they are neutral, not overly discretionary, and under Bourgeois, do not require the waiver of constitutional rights as a condition of obtaining or using the permit. The identical rules should control the "permitting scheme" of selling tickets to sporting events--neutral (because based on first-come, first-served) and no conditioning obtaining or using on a waiver of constitutional rights.
Of course, this case involved a fan's challenge to the search as a condition of entry, rather than a fan's challenge to removal because of his expression. But the court's general approach--consent and waiver--would, unfortunately, appear to apply regardless of the constitutional right in play.
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