New tales of sport and free expression, Part II

This one is about two weeks old, but I just heard about it. Rick Reilly at ESPN.com writes about the new policy at the University of Virginia banning all signs at sporting events. The policy apparently was triggered by University objections to students last season wielding signs critical (and calling for the firing) of football coach Al Groh, in violation of a policy against signs bearing derogatory comments, and by the school's a desire to keep the game environment "positive." More coverage (from late August) here and here. Perhaps realizing that, as a public institution, such naked viewpoint discrimination could not fly, the school went the next step and banned all signs.

At a policy level, this just seems stupid. Schools actively encourage expressive creativity in their fans, yet turn around and cut-off the often-most-creative medium (Reilly gives some examples of clever signs; my favorite, from a Boston Bruins game in the 1970s: "JESUS SAVES AND ESPOSITO SCORES ON THE REBOUND"). Reilly is especially fascinated by the irony of this occurring at the university founded by Thomas Jefferson.

At a constitutional level, the effort is too clever by a half and still will fail. The blanket ban is content neutral on its face. Although motivated by a desire to halt particular speech, courts generally will not look beneath the explicit scope of a ban and into government motive when evaluating content neutrality. The fact that the school believed a blanket ban on all signs was the most constitutional approach illustrates one of the ironies of the focus on content discrimination--government is on safer ground by restricting a greater amount of speech than with a narrower restriction, if it seems to be picking and choosing among speakers and messages.

But even a content-neutral rule must satisfy intermediate scrutiny and I am pretty sure this cannot. First, it cuts off an entire unique medium of communication (written communication); the fact that fans still are encouraged to provide "vocal support" (in the words of the school's associate athletics director) does not overcome the loss of an entire medium. This is especially true if the remaining medium (oral cheering) does not allow speakers to express the same ideas in the same (possibly) creative and meaningful way. Thinking about the sorts of signs we see at sporting events, they do not translate orally.

Second, intermediate scrutiny still requires an important or significant government interest be served and I am not sure what U. Va.'s interest is. Is it making sure that views are not obstructed by fans waving signs? A blanket ban is not tailored to meet that interest because narrower regulations (limits on the size and shape of signs or the circumstances in which signs can be waved or displayed) would effectively serve that interest. Reilly tells the story of one U. Va. student who, after having several signs confiscated, went to the game with a message on a piece of notebook paper, which still was confiscated, although I am not sure how it obstructed or interfered with any other fans. Plus, the policy also does not define what a "sign" is, leaving open the possibility that it will include t-shirts or painted bodies, which clearly do not implicate the obstruction concern.

Is it not wanting the distraction to fans and players that comes with signs? That interest does not seem to be unrelated to the content of the message on the particular sign (in other words, it is not content-neutral). The distraction comes from the words on the sign, not from the mere presence on the sign. Actually, we could test this by adopting one of Reilly's suggested forms of disobedience--bring in a blank sign and see what happens.

U Va. is, not surprisingly, getting some negative media attention on this one. In part, this may be because the sign that triggered the policy, while negative, was not profane or offensive (compare the attempted regulations at the University of Maryland several years ago in response to profane and homophobic chants). In part, it is because, while the regulation is formally neutral, it clearly is motivated by a desire to stop criticism of the team, the coaches, and (indirectly) the administration--in other words, it smells like an attempt by the government to stop people from criticizing it. My prediction is that the policy is rescinded fairly soon, at least as soon as the first lawsuit is threatened.

Cross-posted at Prawfsblawg

Posted in: