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Icing free speech: A fan and the First Amendment
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

In a nation founded on free speech, a disproportionate amount of it is spent on sports.

Fans’ opinions, particularly at this time of year, fill the airwaves via talk sports radio, Web sites and Internet bulletin boards.

And while fans inside stadiums are free to express themselves through boos, cheers and jeers, the question of how much free speech can occur outside a sports stadium is at the heart of a case that may be headed to the U.S. Supreme Court.

On one side of the controversy is Mark Weinberg, author of an unflattering book about Chicago Blackhawks owner Bill Wirtz called Career Misconduct: The Story of Bill Wirtz’s Greed, Corruption and the Betrayal of Blackhawk Fans. On the other side are the National Hockey League, the National Basketball Association, the National Football League and Major League Baseball, which are asking the Supreme Court to reverse a federal appeals court decision permitting Weinberg to sell his book outside the Blackhawks’ home stadium.

Weinberg was a familiar sight outside the United Center and its predecessor, Chicago Stadium, from 1991-97. He stood outside Blackhawks games and sold a magazine that criticized Wirtz. In December 2000, Weinberg published a book with similar sentiments.

After two months of selling the book on public property outside the United Center, he was told by Chicago police officers to stop because he was violating the city’s peddling ordinance. Weinberg took the case to the U.S. District Court for the Northern District of Illinois, where he lost. On appeal, the 7th U.S. Circuit Court of Appeals ruled for the author, finding that the First Amendment trumps the city’s ban on peddlers outside sports stadiums.

The appeals court decision is a valuable reminder of the power of freedom of speech and the limits of government regulation:

  • The court noted that the only way a city can limit free expression outside the stadium is by demonstrating a “significant governmental interest,” but found little basis for the city’s argument that it was only trying to cut down congestion. The court cited a videotape in which Weinberg is seen selling the book and causing no disruption.
  • The court also noted that if the city truly was interested in preventing congestion, it was terribly inconsistent. The city banned sales of products, but permitted newspaper sales, street performances, charitable solicitations and leafleting.
  • The court also ruled that when the First Amendment is involved, government must narrowly tailor its restrictions in order to address a specific goal. A 1,000-foot ban around the United Center was too broad.
  • Also at issue was whether Weinberg had a reasonable alternate location from which to sell his book. There’s no better place to sell books critical of Blackhawks management than outside the stadium where the team plays. “In evaluating First Amendment cases, we cannot check common sense at the door,” Judge William J. Bauer wrote.
  • In ruling for Weinberg, the court also tossed out the city’s requirement of a peddling license because it provided no guidelines. If a government official can arbitrarily decide not to issue a license for the sale of a publication, it constitutes unconstitutional prior restraint.

Now the professional sports leagues are asking the Supreme Court to review the federal appeals court decision, citing fear of terrorism and security concerns.

Weinberg told the Associated Press that the new argument was ridiculous.

“The teams are using the fears associated with terrorism and 9/11 to selfishly foster their economic interests,” Weinberg said.

On one level, it’s easy to understand the position of the leagues and the stadiums. They don’t want a flea market set up outside their front doors.

On the other hand, the appeals court decision is tremendously reassuring. It sends a clear signal to all city governments that regulations designed to address traffic and littering must be drafted carefully, with an eye toward preserving First Amendment freedoms. Messages like Weinberg’s can’t be zoned out of existence.


Major leagues again try to banish book peddler

Sports associations cite post Sept. 11-security concerns in appealing 7th Circuit's ruling in favor of author Mark Weinberg. 09.09.03

High court refuses several First Amendment cases

Justices' decision not to hear appeals means victory for Idaho newspaper, Chicago peddler, defeat for California salutatorian, Florida judge, Indiana attorney. 10.07.03

Buffalo Bills bar fans' signs of frustration

Local official says NFL team, under lease agreement, has complete control over county-owned stadium during games and can set its own rules. 12.30.05

Mich. bill aims to give sports fans more rights to cheer, jeer
Taxpayer-supported stadiums couldn't confiscate signs unless they block other fans' view, contain profanity or pose safety hazard. 09.13.06

6th Circuit allows Indians fan to pursue free-speech claim
'It reaffirms the right of fans in baseball and football to heckle players, which we believe is protected by the First Amendment,' says attorney for fan arrested at game in 2001. 09.18.06

Divided 9th Circuit backs Seattle's rules for street performers
'There is no case anywhere, as far as I can tell, approving a speech permitting scheme of this kind,' dissenting judge writes. 01.11.08

9th Circuit: City's rules on street performers must disappear
Balloon artist 'Magic Mike' Berger prevails in First Amendment dispute over regulations at Seattle Center. 06.25.09

Baseball fan settles 'God Bless America' suit
Bradford Campeau-Laurion had claimed police officer kicked him out of Yankee Stadium because he left his seat during patriotic tune. 07.08.09

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