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.