Document Type

Article

Publication Date

2006

Excerpt

This Article explores in depth three distinct elements of cheering speech, all of which must be present for it to enjoy full constitutional protection. The analysis considers the effect on free-speech principles from the economic, psychological, cultural, and sociological import of sports, sports stadiums, and sports fanship.

Part I examines the public-forum nature of the grandstand or bleachers at the ballpark or arena, the place where cheering speech occurs. The proper characterization of the forum dictates the First Amendment rules that apply there and the expression that can and cannot be regulated there.

Part II examines the nature of the entity that controls the relevant forum, the stadium or arena. At one end is a state university controlling student-fan speech in its arena, a state actor plainly bound by the limitations of the First Amendment. At the other end is a private university controlling fan speech in its arena; this is a private actor controlling private property and ordinarily not bound by those limitations (although certainly permitted to make the private decision to govern its conduct according to free-speech principles).

Somewhere in the middle is the prevailing situation in professional sports: an ostensibly private entity (the franchise) regulating cheering speech in a ballpark built largely with public funds, owned by the government, and leased-long-term, exclusively, and on favorable terms-to the franchise. Only if that entity can be deemed a state actor will it be subject to First Amendment restrictions in regulating cheering speech there.

Finally, Part Ill reaches the crux of the controversy over expression by sports fans, examining the specific content of different examples of cheering speech and the protection to which it is entitled.

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