Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during
God Bless America during the Seventh Inning Stretch. I first discussed this issue
here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is
here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments)
here and
here.
In the interest of shameless self-promotion: I have
written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):
Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,” counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America” or may turn their backs to the flag during the anthem. Fans even may jeer one nation’s anthem as it is being played as protest against that nation or its policies.
At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.
There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the
New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.
State Action or Action Under Color of LawAre the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.
The strongest argument for state action is
Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).
The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact,
Burton was the basis for a district court holding in
Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether
Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.
A second argument is based on the more-recent decision in
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with
Brentwood may be how long the opinion survives--the Supreme Court this term heard
oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.
First Amendment PrinciplesThe next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the
GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.
The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in
Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.
Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under
Barnette unless the government/Yankees can show that one form affects its interests differently.
This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under
Barnette. This goes off the rails, however, because I do not think the disruption argument works.
In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the
photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be
least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.
The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.
This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during
GBA only is disruptive in the more expensive seats?
I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.
But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?
Over on PrawfsBlawg, Matt Bodie has a thoughtful post on the oddity of Major League Baseball teams and many of their fans being so openly obsessed with nuanced, sometimes esoteric, statistical measurements of players while being tolerant or at least less vocal towards glaring inequities between teams (thanks to Octagon associate general counsel Ryan Rodenberg for the link). Here is an excerpt from Bodie's post:
