You all know well that my ongoing First Amendment obsession remains what I call "cheering speech"--oral and written expression by fans in the stands at sporting events, focused on the game and its participants, about sport more broadly, or about society as a whole. Because sport is such an essential aspect of our culture, speech about sport possesses serious cultural value. Relatedly, the grandstand is the essential public forum for cheering speech, subject to the ordinary rules of public-forum analysis, namely few if any content-based regulations. The First Amendment problem arises most vividly in arenas owned and controlled by public universities, where the necessary state action is obvious. I have focused scholarly attention here, here, and here; I have blogged about it, among other times, here, here, and here.
The trigger for these controversies usually is an effort by a public university to institute and enforce a code of fan conduct at games, prohibiting profanity, vulgarity, and offensive speech, particularly anything having a sexual connotation. What is overlooked in all of these efforts is one simple fact--under Cohen v. California, profanity and offensive speech is constitutionally protected, outside of narrow categories (such as fighting words or threats) that simply do not arise in the context of a crowd of 15,000 screaming sports fans. So, too, is sexually explicit speech.
And yet schools keep trying . . .
The latest example comes from Ferris State University in Big Rapids, MI. A student (I am removing his name for this post) sent an e-mail to the editors at First Amendment Center Online, which was passed along to me.
According to the student, the school sent the following to students:
"Hello, Bulldog Hockey Fans,
Your tremendous support of Bulldog hockey is great for the program andis appreciated by everyone associated with it. However, recently we have crossed the line in fan support by having vulgarity and profanity become a large part of what should be Dawg support. This will not be allowed to continue.
Those chants that contain profanity or are vulgar in content, especially those that have a sexual connotation, will not be tolerated. For those of you who are regular attendees to Bulldog hockey games, these chants
are, most notably, before many face-offs when it is chanted, "Drop it. Drop it. Thank you, A***ole!", and those where a word is spelled out (for example, "Give me a D….") that leads to a message with a sexual
connotation.
You are important to our program, but so are the families and children that also look forward to attending the games. As a result, anyone that insists on using profanity and vulgarity will be removed from the arena
and forfeit their ticket privileges. If you do this as a season ticket holder, this means you will forfeit your tickets, with no refund, for the remainder of the season. In addition, any FSU students caught using
profanity and vulgarity will be referred to the Office of Student Conduct for further action."
The student then tells the following story. I concede there likely is more to the story, but for now I will apply Rule 12(b)(6) analysis and accept all the facts alleged as true:
I recently was removed from a hockey game and my ticket privileges were revoked for participating with the entire student section in a chat that goes "Give me a D, Give me a I, Give me a L, Give me a D, Give me a O, What's that spell? Dildo, What does that mean? Put it between the pipes." [Ed: College hockey fans may be the most unique and creative in their cheering speech, for better or worse.] My participation in the cheer was limited to the "What does that mean? Put it between the pipes." Along with my privileges to hockey games (which I payed for and never signed a document stating that I would not participate in such cheers) I have been referred to the Office of Student Conduct for Judicial Discipline. This referral remains on my student records even after I graduate. I was the only person that was removed for this cheer and I was not the one to initiate it.
Again, taking these facts as true, the student at least states a First Amendment claim. Where to begin
First, this is pretty typical of college policies in seeking to get students to clean up their speech to protect objecting audience members from having to tolerate offensive or objectionable speech. But this policy simply codifies a heckler's veto--government prohibits and punishes some speech because some in the audience may not like that speech and may not want to hear it. The University's reference to fan support "cross[ing] the line" is nonsense. The only line that can be crossed is into an unprotected category of speech; short of that, speech is not sanctionable simply because it crosses some line concerning what government approves of or likes.
Second, the university has acted here in the name of protecting the "families and children that also look forward to attending the games." The hope/belief is that protecting sensitive young ears and eyes provides the necessary compelling interest to regulate speech based on its offensive/profane content. And while courts continue to blandly accept protecting children as a compelling interest, that does not permit the school to reduce the population of adult fans to saying and hearing only what is appropriate for children.
Third, this situation illustrates a major problem with these fan-conduct policies--arbitrary and inconsistent enforcement. Accepting this version of events as true, it appears they picked out just one student from a crowd of people when a large number of people were engaging in the same speech.
Fourth, in some ways, this is an unfortunate test case for attacking cheering speech regulations because it lacks any political or social content, as cheering speech often does. This is just a large group of college students trying to irreverent and provocative and, in the end, being just silly, "crossing the line" as the University's letter said. But the First Amendment does not make (and precludes the state from making) such value judgments about protected speech--it is with the individual speaker(s) as to how best to express their ideas, silly or otherwise. And sport clearly remains an important cultural institution on Ferris State's campus, lending this speech some cultural import.
Finally, the sense that this all is not important as a First Amendment matter because of the speech at issue is tempered by the fact that, under the policy, student fans are referred to the Office of Student Conduct. The typical response to arguments about the protection for cheering speech usually runs along the lines of "It's not real punishment, he just was kicked out of the game." Not anymore; this student is potentially facing (possibly serious, we don't know) university sanction for speech that is otherwise constitutionally protected. That somewhat takes this out of the realm of being "just about sports."
[Cross-Posted at PrawfsBlawg]
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