By Howard M. Wasserman
Assistant professor of law, Florida International University College of Law
Many free-speech controversies, especially on college campuses, are grounded in concerns for civility, politeness and good taste. They also tend to follow the same path and end the same way. A government entity regulates speech in an effort to elevate discourse, limit the profane and protect public and personal sensitivities; courts strike down the regulations as violating the First Amendment freedom of speech; and we end up right where we started.
Colleges may be pursuing a similar course in trying to deal with objectionable cheering by students at sporting events. University of Maryland officials expressed anger and embarrassment following a men’s basketball game against conference rival Duke University in January 2004, when fans chanted and sported T-shirts with the slogan “Fuck Duke” and directed epithets at Duke players. This was one of many incidents of offensive or obnoxious cheering by students throughout the country during the 2004 college basketball season.
John K. Anderson, chief of the Educational Affairs Division of the Maryland Attorney General’s Office, advised the university that a written code of fan conduct applicable at a university-owned and -operated athletic facility, if “carefully drafted,” would be constitutionally permissible. University of Maryland Associate Athletics Director Michael Lipitz began working with a committee of students to consider rules of conduct. The committee ultimately recommended that the university promote voluntary compliance, although rules and formal punishment remain a “last resort” if a proposed standing monitoring committee determines that voluntary compliance is ineffective. Other schools, such as Western Michigan University, currently have, or are studying the need for, similar codes to restrict profanity and other abusive language. And the approach of a new academic year may bring new incidents and new university attempts at regulating fan expression.
One can envision guidelines restricting profanity and epithets in signs and chants, as well as imposing a general requirement that students keep things stylish, clever, clean and classy. Presumably, the sanction would be removal from the arena. The ostensible purpose behind such guidelines is to enable the majority of fans to enjoy the game unburdened by objectionable or offensive signs, messages and chants. But any such policy enacted and enforced at a public university such as Maryland should not and perhaps will not survive First Amendment scrutiny. On the other hand, a private college, not bound by the strictures of the First Amendment, obviously remains free to impose such restrictions.
The speech at issue is expression by fans related to a sporting event, to all aspects of the game and all the participants in the game — what we can call “cheering speech.” Cheering speech can be directed at players, coaches, officials, executives, administrators or other fans. It can be in support of one’s own players and team, against the opposing players and team or even critical of one’s own players and team. It can be about events on the field or it can target broader social and political issues surrounding the game, the players or sport in general.
In advising the university that it could regulate cheering speech, Anderson insisted that fans at sporting events, particularly children, are “captive auditors.” They are captives in the arena or stadium; the only way to avoid being offended by the chants or signs is to leave the arena or stop coming to games. This captive status, Anderson argued, alters the ordinary First Amendment burden. Rather than requiring objecting listeners to “avert their eyes” (or ears) to avoid objectionable speech, the university can force speakers, especially students, to alter their manner of communicating to protect the sensibilities of these captive fans.
In reality, the captive-audience doctrine is far more limited than Anderson suggests. Courts have found listeners to be captives in only four places: their own homes, the workplace, public elementary and secondary schools, and inside and around abortion clinics. And even in those places, captive-audience status permits government to limit oral expression but not the same message in written form on pickets, signs or clothing. One certainly could avert one’s eyes to avoid viewing the message written on a sign or on the body of a student at a basketball game.
Of course, one problem with cheering speech is that much of it is oral. Fans have complained not only about signs and T-shirts, but also about chants and taunts targeting players, coaches and officials, which other fans may be unable to avoid no matter where in the arena they sit. Objectors must perform the more difficult task of averting their ears to avoid offensive cheers, something that children may be even less able to do. It is true that courts have upheld content-neutral regulations on sound and noise levels to protect captive audiences, beginning with the Supreme Court case Kovacs v. Cooper in 1949. But government never has been permitted to protect captive auditors by singling out particular profane or offensive oral messages for selective restriction while leaving related messages on the same subject, uttered at the same volume, undisturbed.
More important, the captive-audience doctrine never has been applied to listeners in public places of recreation and entertainment, places to which people voluntarily go for the particular purpose of engaging in expressive activity, in this case cheering on their favorite college team. Fans who pay to attend a college basketball game at an on-campus arena are not captive auditors there, any more than an individual walking on a city street who stumbles across an objectionable political rally or an individual whose office sits above the route of an objectionable parade.
The Hobson’s Choice that Anderson believes this creates for fans — leave the arena and stop attending games or tolerate offensive cheers — is precisely the choice people make in any public place at which expression occurs. It is the same choice that people in the California courthouse had to make when confronted with a jacket emblazoned with the message “Fuck the Draft,” a message and manner of expression that the Supreme Court found to be protected from prosecution under a disturbing-the-peace statute in the 1971 landmark case Cohen v. California. In fact, leaving was even less of an option there for an objecting auditor whose job required her to remain in the courthouse or an objector conducting business before the court and likely required to be there on pain of contempt or default. It is difficult to reconcile that “Fuck the Draft” is a protected message in a courthouse, but “Fuck Duke” is unprotected amid the cacophony of 20,000 screaming basketball fans. It is even less comprehensible that Paul Cohen’s intellectual heir could be prohibited from wearing his jacket (for example, to protest the so-called “backdoor draft” created by extending reservists’ service) at a university sports arena governed by a fan speech code.
The real import of Cohen is the principle that a speaker’s choice of words and manner of communication are essential elements of the overall message expressed and government cannot prohibit certain words or manner without also suppressing certain messages in the process. A cheering fan’s point of view is bound up in the decision to formulate a particular message by telling an opponent that he “sucks” or by targeting more personal issues. Fans have created controversy by targeting a player whose girlfriend had posed in Playboy, chanting “rapist” at a player who had pled guilty to sexual assault and waving fake joints at a player with a history of drug use. “Fear the Turtle,” “We Hate Duke” and “Duke Sucks” are three ways of cheering for the Maryland Terrapins, as well as cheering against Duke. But each conveys a distinct message and point of view and each has ample grounds for constitutional protection within the expressive milieu of a college sports stadium.
Because word choice and communicative manner are essential components of free-speech protection, it becomes impossible to enforce any fan-conduct policy in a uniform, non-arbitrary way. The state cannot neutrally define what words or manner are offensive or establish any meaningful standard to measure offensiveness. Justice John Marshall Harlan’s memorable phrase in Cohen was that “one man’s vulgarity is another’s lyric,” and government’s inability to make principled distinctions means “the Constitution leaves matters of taste and style so largely to the individual.”
Under current doctrine, offensiveness cannot be measured from the standpoint of the most sensitive person in the crowd; the level of permissible expression cannot be reduced to what the least-tolerant listener will accept. Nor should it be measured from the standpoint of children in the crowd, because, as the Court long has insisted, the level of discourse for an adult audience cannot be reduced to what is fit or proper for children. The university sports arena exemplifies the problem of the mixed audience — how can government regulate speech in the interest of protecting children when the speech occurs before a mixed audience of children and adults? The pithy answer may be that it simply cannot do so. There is no, and can be no, baseline for oral speech before a mixed audience; either children unavoidably hear some “adult” expression or we reduce the level of speech to what is suitable for a sandbox.
In seeking to control abusive cheering speech, universities apparently do not distinguish among expressive forms. On one hand is blatant use of profanity; on the other hand are epithets or chants that do not employ any of the seven dirty words, but that target opposing teams, players, coaches or officials, perhaps with references to personal life or criminal difficulties. The presumption apparent in Anderson’s recommendation to the University of Maryland was that a public university could serve the same interest in protecting children through a single conduct policy that banned both “Fuck Duke” chants and signs and chants and signs targeting a player accused of sexual assault. One can imagine attempts to require students to keep things “polite” or “positive” — cheer for your team and your players, but do not jeer or criticize the opponent (or, for that matter, your own team). Even conceding a government interest in protecting sensitive and juvenile ears from the seven dirty words in public spaces, government goes a step beyond when it begins to restrict particular non-profane messages that bear on the game played on the field or on the participants in that game.
Moreover, the sexual-assault example presents an additional wrinkle. Taunting a player who has been accused of sexual assault may be, at least in part, a social or political statement, protesting or drawing attention to the problem of athlete misbehavior or to the fact that this player continues to be allowed to play for the school despite his off-court misconduct.
Perhaps the level of protection turns on the subtlety of the chants. Students are obvious in their attempts to offend when they use profanity, chant “rapist,” or wave fake joints. But what if Maryland students chant or wear T-shirts bearing the slogan “Duck Fuke”? This is an obvious play on the profanity that created controversy at Maryland, but it does not use (as opposed to hinting at) dirty words. Should hinting at profanity be enough to justify a restriction on protected manner of expression?
Or what if the offensiveness is lost on those who might otherwise be offended? Students at Allen Field House at the University of Kansas were praised for their cleverness during the 2004 season when they chanted “salad tosser” at Texas Tech Basketball Coach Bob Knight. On the surface, the taunt was a reference to Knight’s infamous verbal altercation several days earlier with the Texas Tech chancellor at a salad bar in Lubbock. But the phrase also is a slang reference to a particular sexual act, a double entendre the students surely knew when they began the chant, but many listeners likely did not.
Dissenting in Cohen, Justice Harry Blackmun derided Paul Cohen’s jacket as “an absurd and immature antic.” By contrast, Justice Harlan insisted that the expression at issue was, in fact, of “no small constitutional consequence.” Free-speech scholars laud Cohen for recognizing that government must leave matters of expressive taste and style to the individual. One could dismiss offensive signs, T-shirts and taunts at college basketball games as similarly absurd and immature antics. However, as in Cohen, skirmishes over what fan expression will be permitted at public university sporting events are of no small constitutional consequence.
College sport has become, for better or for worse, a central part of college life and culture. The prevailing belief among university administrators and most commentators is that successful athletic teams, particularly in high-profile football and men’s basketball, can be a source of university pride, publicity, media attention, revenue and increased donations. The non-athlete students who pack the stadium provide an essential ingredient of that overall culture. Students are encouraged to attend games and make noise, to be excited and passionate about their school, to cheer for their team and players (and against the opposing team and players), and to create a playing environment that will be intimidating or distracting to the opponent and will give their team a home-court advantage. Indeed, it is somewhat ironic that Duke players were at the receiving end of the taunts that prompted Maryland to consider an arena speech code. Duke students have attained wide notoriety for their sometimes-clever, sometimes-offensive cheering speech and the headaches they cause opposing teams and players.
The grandstand at the arena or stadium has become the central public forum for cheering speech. Fans are invited to the arena and encouraged to speak, loudly and in however vivid or stark terms, to support, oppose, cheer, jeer, criticize and even taunt teams, players, coaches and officials in that game. Having created this forum for students to express themselves, a public university has ceded control over the manner in which students do so, at least within the parameters of protected speech. Fans must remain free to jeer as well as cheer players and teams and in as blatant or profane a manner as they wish.
Perhaps one may not particularly enjoy sitting, or having one’s children sit, in an arena where students are shouting expletives throughout the game. But commitment to a neutral free-speech principle means tolerating a great deal of speech that one personally does not like or does not wish to hear. And there is nothing wrong with hortatory efforts by the university, coaches and, most important, other students to encourage fans, especially student fans, to keep their cheering stylish, clean, classy and creative. The “voluntary compliance” policies recommended in June by the student committee at the University of Maryland included a program under which students could exchange profane T-shirts for noncontroversial ones, contests that would encourage appropriate signs and banners, having coaches address students about the need for good sportsmanship and fan behavior and distributing newspapers at games with “creative witty cheers” for students to use.
The point is that a state university may not formally punish — even via non-criminal sanction such as removal from the arena — those students who depart generally accepted norms by loudly wielding a particular loaded word to inform officials or opposing players that they are not very good at what they do.
© 2004 Howard M. Wasserman. Howard M. Wasserman is assistant professor of law at Florida International University College of Law. He earned his J.D. in 1997 and his B.S. in journalism in 1990, both from Northwestern University. Thanks to Thomas Baker, Mark Graber, Matthew Mirow, Peter Oh, and Andre Smith for comments on this essay and to Howard Schweber and Eugene Volokh for helpful e-mail exchanges. A longer version of this essay appeared in the Journal of College and University Law in 2005.