This paper explores the parameters of the limits of sport spectator under current law. The nature of the venue will be examined.

The difference between the arena of a public university, an arena subsidized by public funds or tax incentives, and a privately

owned stadium will be compared and analyzed. Paying customers in a place of public accommodation have the right to speak,

Freedom of speech, captive audience, assumption of risk

As Civility Codes and safe space zones proliferate college campuses in the name of protecting the individual's rights and their

fragile sensibilities, invited speakers are protested and shouted down by both the right and the left. Sports fans may believe they

are the last bastion of true content neutral freedom of speech because they are paying for that right. As recent high profile

controversies involving former Oklahoma City Thunder player Russell Westbrook and a Utah Jazz fan as well as New York

Knicks owner James Dolan and a Madison Square Garden ticket holder remind us there are stakeholders who wish to enforce

limits.

This paper examines the law as it relates to captive audiences and places of public accommodation. Is the offended listener a

cultural arguments for controlling speech and behavior under the law. The culture and history of various sports and entertainment

events will be looked at in this section. Spectators chanting during a free throw at the professional, collegiate, and high school

level are regulated and interpreted differently. Why is LeBron James shooting a free throw to determine the outcome of a Los

Angeles Laker-Golden State Warriors basketball game looked at differently than Tiger Woods trying to make a putt on the

eighteenth green at Augusta to win the Masters as it relates to regulating crowd conduct?

Finally, policies that comply with the relevant law to maximize the spectator experience for all while allowing player/performers

to practice their craft will be recommended. Suggestions will certainly be debatable to First Amendment scholars, proponents of

civility standards as well as “old school purists” who object to music at games, celebrations after every sack, signage at arenas,

the three-point line and the designated hitter. No apologies will be offered.

culture. (Michener, 1976) The Westbrook incident earlier this year illustrates a line of demarcation exists and in this instance

was crossed by both the fans and the player (Arnold, 2019).

make noise, be louder, and cheer by stadium signage, bands, scoreboards and team employees (Independent contractors?) aka

cheerleaders. Fans become a part of the game developing pregame rituals, songs, chants, and even on field participation. Fans

and their families are enticed to purchase tickets through comprehensive sales strategies involving standing on the field for the

National Anthem next to players to between innings or halftime contests demonstrations and events to after game base running,

concerts or youth games (mlb, 2019).

Fan participation through expression, verbal (e.g. cheers/jeers, fight songs, gestures like the Tomahawk Chop, the Wave and

professional team is a government actor subject to constitutional free speech constraints is still a matter of legal debate

(Brentwood Academy v Tennessee Secondary School Athletic Association, 2001).

Public Universities are state actors bound by the First Amendment. The Island Federal Credit Union Arena. Home to the men’s

and women’s basketball teams of Stony Brook University is constrained in their regulation of fan speech under established First

Amendment limitations. (Crue v Aiken, 2004) Private Universities are not bound in the same way by First Amendment

limitations. They have broader latitude in enforcing speech codes. Even schools participating in the same NCAA conference

such as Duke University and North Carolina State University have differing rights to enforce limitations on speech in their stadia.

(Wasserman, 2006)

limited options to avoid objectionable speech. The government therefore has an interest and additional rights to control and limit

the speech a captive audience listener is subjected to (Hill v Colorado, 2000).

The captive audience argument has been construed very narrowly by the courts. It is unlikely fan speech that is not within one

of the established categories of speech not protected under First Amendment analysis would be analyzed differently (Snyder v

Phelps, 2011).

Somewhere in between publicly owned facilities and privately owned facilities lies the very common hybrid of privately owned

and operated professional sports teams playing in facilities that are publically owned or publically subsidized. (Stepman, 2017)

The subsidies vary from tax breaks to land donations to infrastructure costs. (Ballparks, n.d.) This private-public hybrid is the

subject of complex “state actor” analysis for First Amendment application.

So when it limited fan speech by prohibiting protests on the sidewalk, a violation of free speech rights was found by the federal

court. (United Church of Christ v Gateway Economic Development Corp., 2004)

If the “state actor” status is met and constitutional protections attach, only content neutral restrictions will survive constitutional

challenge. Restrictions on both profane speech and sexual innuendo have been held as protected speech by the U.S. Supreme

Court. So, prohibiting “Fuck Duke” fan speech at the University of Maryland is no more likely to survive a First Amendment

challenge as “Fuck the Draft.” (Cohen v California, 1971) In 2017 the United States Supreme Court reaffirmed that there is no

hate speech exception in the First Amendment. Racially disparaging hate speech is not unprotected speech. (Matal v Tam, 2017)

Content neutral restrictions by stadia if not overbroad may be enforceable. A balancing of interests test could find a ban on signs,

regardless of what the sign says, may be enforceable. The theory being if your sign substantially impedes my view of the game

Greensboro.com, 2014)

Teams who attempt to insulate players from fan criticism have many alternatives that do not violate constitutional protections.

NBA and College basketball fans are encouraged to participate in the action more than many other sports because of their

proximity to the court, bench, and players. As additional netting is installed at baseball stadia and glass boards and protections

are expanded at hockey arenas, basketball remains the most vulnerable due to the fan-player proximity. The Raptors and Knicks

at the same time seek to monetize Drake and Spike Lee while regulating the behavior of fans who are sold alcohol and provided

with accommodations close enough to touch players and coaches.

Limiting fan access to devices which enhance the volume of their cheers/jeers and their physical access to the participants is a

more constitutionally feasible approach to avoiding many of the Russell Westbrook, James Dolan and Mark Stevens, the Golden

Ballparks. (n.d.). Retrieved from http://ballparks.com

Brentwood Academy v Tennessee Secondary School Athletic Association, 531 U.S. 288 (United States Supreme Court 2001).

mlb. (2019). Retrieved from https://www.mlb.com/mets/tickets/promotions/themes/family-fun