Rowdy Fans?! New Rules in Southern Cal Restrict Offensive Language

QUESTION: Does the new Southern California Fan Code of Conduct restrain free speech?!

BACKGROUND: The LA Sports Council recently adopted the “Southern California Fan Code of Conduct.” It is available here.  Among other commandments, fans are encouraged to refrain from “offensive language.”  Now, as a Buckeye, I’ve attended my fair share of rowdy sporting events and heard language that would make anyone blush. But to curb poor fan behavior, teams and venues enforce “arena rules” governing fans, usage of media, and other rights and responsibilities. See the NBA ticket rules posted below.

Regardless, I found the first point regarding fan speech to be a somewhat curious decision. I wondered if the LA Sports Council and the collective of governmental agents set themselves up for a first amendment free speech challenge.

RULES: The first amendment to the Constitution prohibits the government from making any law abridging free speech.  If the law prohibits speech before it takes place, it is a “Prior Restraint” (or censorship) of speech.  U.S. Const. am. 1.

ANALYSIS: The Southern California Fan Code of Conduct’s first prohibition is a prior restraint, but a lawful one.  The main reason it is lawful is because the government is not instituting the Code, private parties are.  The first amendment prohibition regarding speech applies to the government, not (usually) private entities.

While California’s law enforcement plays a miniscule role in monitoring fans (and though some venues are even owned by public entities), the government’s role in sporting events also falls well below the “state action” requirement to prosecute a free speech claim.

Take the movie rating system as an example. The industry ratings code (G to NC17) restricts speech to a degree. The code is lawful, however, as it is enforced by studios and distributors, not the government.  Studios and movie theaters adopted the MPAA to forestall government intervention (they get busy prosecuting MLB players after all) and avoid negative publicity.

CONCLUSION: The LA Sports Council appears to have the same objectives in that the Code is designed to promote safety, fan enjoyment, and be consistent across sporting venues. Whether you believe that… or that it helps make money and protects brands, be careful what you say about it.

Jesse (Don’t Touch my Body) Ventura Receives a TKO from Court

Jesse Ventura

Jesse’s Issue: Former Gov. Jesse Ventura filed a lawsuit against the Dept of Homeland Security & the TSA alleging the organizations violated his constitutional rights to privacy through the airport’s “enhanced screening measures.”

Legal Rules: The question of whether the pat down invaded his privacy was not even dealt with by the court.  The Court dismissed the case based on procedural rules.  All challenges to TSA procedures must be done at the Circuit Court of Appeals, not the District Court.  If you don’t play by the (procedural) rules, game over, Mr. Ventura.

Analysis:  Regardless, Jesse’s claim likely would have failed. The concept of due process provides that certain rights – life, liberty, or property – cannot be deprived without constitutionally adequate procedures. The procedures provides a heightened level of protection against government interference.

The degree of protection, however, depends on the issue.  In Jesse’s case, the right of privacy is a historically fundamental right and traditionally requires the highest level of scrutiny.  Any rule/procedure which restricts or inhibits the right of privacy must pass the court’s “strict scrutiny” test.  The test traditionally examines whether the government’s procedure is justifiably reasonable, and whether the procedure is the least restrictive method to meet the end goal.

The Supreme Court also determined that the right to travel is a fundamental liberty.  Similarly, any restriction to travel must be narrowly tailored so that it does not overly inhibit travel.  Ultimately, the Court’s goal is to find the right balance between fundamental rights to travel, privacy, and the government’s ability to adequately protect its citizens.

“… And in this Corner, we Have a Loser”  In Jesse’s case, if the Court would have scrutinized the rights and procedures, Jesse would have lost.  While I personally roll my eyes at pat downs, and shiver when I think about walking barefoot on LAX’s floor, the government’s requirements are not overly broad (they do not completely restrict my right to travel). Simply put, pat downs and screenings allow for travel, allow the government to implement procedural safeguards, address national security concerns, and do so in the least restrictive way possible.

As it stands now, pat downs stay… and his nickname probably won’t change to Jesse “The Scholar” Ventura.