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Is jeering during sporting events protected by the First Amendment? (David E. Klutho / Sports Illustrated / Getty Images)

A Right to Jeer?

Some sports teams are trying to limit how fans express themselves. Does that violate the First Amendment?

Last February, at a North Carolina State men’s basketball game against Florida State, two former players seated in the stands, Tom Gugliotta and Chris Corchiani, were ejected from the arena for loudly and bitterly protesting the referees’ calls. Officials from both teams and fans seated nearby said neither of them used vulgarity or threatening words. Yet, at the request of a referee, they were approached by security officials and tossed from the game.

The episode, at a game hosted by a public university, raised questions that wouldn’t have occurred to the Founding Fathers: Is a fan’s protest a form of expression protected by the First Amendment? Do fans have the right to rail at referees or players as long as they don’t run on the court or threaten anyone?

Howard Wasserman, a law professor at Florida International University who writes about fan behavior and the First Amendment, thinks fans do have that right. “The general idea of protection for free speech suggests that yelling at the referee, criticizing the players, cheering for your team, jeering the other team—all that—is protected,” he says. “There’s nothing about it that makes it fall within any category of speech that’s unprotected.”

But that’s just one opinion. Despite 150 years of American public sporting events, the debate is still open because the Supreme Court has never ruled on the subject of jeering at games.

The First Amendment to the U.S. Constitution—part of the Bill of Rights—protects religious liberty, free speech, a free press, and the right to hold protests and complain to the government. But more than 200 years after it was ratified in 1791, we’re still debating what it means. One reason is that the Founders’ language is quite broad and therefore open to interpretation. Another is that the world in 2013 is very different from that of 1791.

The debate over jeering at sports events is unresolved for two reasons, lawyers say. Fans removed from arenas are rarely arrested or angry enough to follow through with a lengthy—and expensive— lawsuit; and the few cases brought have almost always been settled out of court because team and arena owners fear a decision that may establish fans’ rights.

“They would much rather not have the court dictating a standard,” says Mark Conrad, a sports law professor at Fordham University in New York.

Stadiums usually create their own codes of conduct in order to control fans’ behavior. Some colleges, for example, have tried banning all signs from their arenas. The University of Virginia banned signs in 2008 after a student held up a sign reading “Fire Groh,” referring to the university’s football coach, Al Groh. Instead of banning that particular viewpoint, Virginia banned all viewpoints— a much better strategy as far as the First Amendment is concerned. In fact, as long as the university doesn’t discriminate against one particular sign, team, or viewpoint, says Conrad, there is no First Amendment problem. (The UVA community protested the sign ban and the university lifted it six weeks after it was put in place.)

In August, the University of Arkansas, which has long had a no-signs policy, tried a different approach: It announced that students had to get advance approval for any sign they wanted to display at football games. The move was seen as a way to avoid references to an affair between thencoach Johnny Petrino and a fellow employee. The situation would make a great First Amendment case: Can a state university require prior approval for fans to express themselves?

Publicly owned sports facilities—like a college football stadium built with taxpayer money and/or on land owned by the state—must take these concerns into account. But privately owned facilities— like Madison Square Garden in New York—aren’t required to.

“If the park or the stadium is privately owned, then there are no First Amendment implications,” Wasserman says.

So in the case of public facilities, what can fans do and what can’t they do at sporting events? When does fan behavior or speech cross the line? The question hinges on whether it’s disruptive to the event in some way.

“If it’s just me screaming and yelling and even swearing, that’s not disruptive,” Wasserman argues. “People may not like what I’m saying, but that’s not disruptive.”

At the same time, the First Amendment does not protect obscene speech or words that incite violence or create a danger. (Supreme Court Justice Oliver Wendell Holmes famously wrote in 1919 that you cannot falsely shout “Fire!” in a crowded theater.) Stadiums, for example, can eject fans on the basis that children come to sporting events and they, like anyone else within hearing distance, must be protected from offensive speech.

“The ticket is actually a license to attend the game,” says Scott Rosner, a sports business and law professor at the University of Pennsylvania’s Wharton School. “If you want to keep the privilege of that license, you need to conform to certain standards of conduct.”

There is a fine line between rooting for your team and interfering with a referee’s ability to oversee a game.

“It’s no different than shouting and cheering at a Broadway musical,” says Alan Goldberg, a lawyer from New Jersey who has represented officiating organizations. “You can do it, but if you stand up and do it in the middle of a song, you are disrupting the performance. Your free speech doesn’t extend that far. It only goes so far.”

With reporting by Bill Pennington of The New York Times.

This article originally appeared in the December 10, 2012 issue of The New York Times Upfront. For more from Upfront, click here.

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