There seems to be a severe lack of understanding about our First Amendment rights as fans. For the majority of us, there is always a level of apprehension about what types of behaviors are legally permissible when we attend games. What can legally get you kicked out of a stadium and when should you stand your ground?
Our own lack of knowledge is compounded by the fact that per mar and stadium security are almost never trained in First Amendment legal issues and their enforcement of rules tends to actually infringe on fans' First Amendment rights. Based on legal precedent (stare decisis) most stadium conduct codes are constitutionally vague and overbroad and in some cases infringe on the fans right to freedom of speech.
So what types of behavior are not covered under the first amendment? In terms of common sports issues, if you are being an obnoxious drunk (generally anything you do intoxicated will come back to bite you legally so it is best to drink in moderation), fighting words, and obscenity are not permissible under the first amendment. However, the legal definition of fighting words and obscenity are not the same as our conventional understanding and need to be explored.
The fighting words doctrine comes from the legal precedent set forth in Chaplinsky v. New Hampshire defines fighting words as things which are said with the intent to incite immediate retaliation and are said in your face. In other words, if you get into the face of another fan and start insulting him you are not protected by the first amendment. The logic behind this is to prevent speech which is meant to incite violence.
However, the fighting words doctrine is very narrowly tailored, and outside of the scenario I just mentioned there really aren't a lot of situations where this would apply. For instance, insulting a game official, coach, team, or player from the stands is not fighting words unless you get in their face. Fighting words amount to a slap in the face and that doesn't work if you are yelling from the 15th row.
Obscenity is legally defined in Miller v. California as, "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value".
As the Miller test for obscenity has been applied in subsequent cases, we see that obscenity does not include foul language. This is best exemplified in Cohen v. California where Cohen wore a jacket which read "Fuck the Draft" into a California courthouse. The court found that the four letter word did not constitute obscenity and that the jacket was protected symbolic speech.
More recently, a Kanss City Chiefs fan won a legal dispute with Qualcom Stadium (home of the San Diego Chargers). The Chiefs fan, in a game where his team was getting beaten badly, turned and raised his middle finger to the crowd. He was taken down by security and fought back. The fan was charged with battery but was acquitted. The judge ruled that the man had a right to defend himself from the security guards and that the middle finger was a permissible first amendment expression.
So to sum this up, your speech is protected unless it is obscene (which does not include profanity), is meant to incite immediate physical violence, or is done while intoxicated (in which case you will likely be cited for public intox and disorderly conduct). However, this has not stopped stadiums from instituting speech and conduct codes and for writers like Rick Reily lamenting the boorish behavior of a minority of fans. There are legal issues here as well, particularly whether stadiums have the right to regulate free expression and do the wishes of an assumed majority of fans have the right to silence free expression?
The first is answered through the legal precedent set forth in Board of Airport Commisioners v. Jews for Jesus which states that the creation of first amendment free zones is unconstitutional. Public forums, which is what sports venues are legally defined as, are not allowed to ban certain forms of free speech. The first amendment considers profanity as protected because it is central to the message being conveyed. By forcing people to not use profanity (or vulgar phrasing) , the legal system would be changing the message or the core ideas of the speech. Speech cannot be regulated based on its' content and since the use of profanity is considered essential to the message it is not constitutional to regulate it (see Cohen v. California).
Furthermore, fans who do not approve of the speech of others do not have the right to overrule a minorities free speech. In Terminillo v. Chicago the U.S. Supreme Court established the heckler's veto, meaning that a crowd of dissenters cannot prevent a minority from speaking. Even if a majority do not agree with the message, they have no right to prevent someone from expressing that message. So even if you brought your child to the game and the guy behind you is cursing up a storm, there is nothing you can legally do to silence him. As this article so eloquently points out, the idea that sports fans are a captive audience does not hold water. It says
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.There cannot be a double standard for sports when it comes to free speech. If you don't think your child can handle the language at the ballpark then you don't have to bring them, and even if you don't like the message of the guy sitting behind you, unless he is inciting violence, there is nothing you or stadium security can do about it.
While I have no doubt that the majority of the horror stories we hear about at stadiums are driven by alcohol (which is almost a separate problem in and of itself), I have had my own fair share of stadium experiences that have prompted me to think that this is not the only thing going on. I remember a Royals game back in the summer of 2009 when a friend and I were sitting in the outfield. A group of college kids sat in front of us and started taunting a couple White Sox players when a father holding a baby told them to stop using profanity because of the fact that his child was there. Stadium security was called on the students (who frankly weren't saying anything THAT bad and were not intoxicated) and they promised to keep quiet instead of being kicked out of the stadium.
I know this seems like an extreme example but I think it is not the only time that I have seen it happen. I can think of an example from practically every sporting venue I have visited more than once and that is sad. While there is certainly a moralistic argument to be made for how fans should behave, the right for us to have different moral compasses is part of our constitution and regulating it through stadium security at a sporting event is illegal. There needs to be a better appreciation for the rights of fans to express themselves their fellow fans and stadium security needs to be better trained to handle free speech issues.
Our country is founded on the right to free expression of ideas, even those which may offend the sensibilities of a majority. It would be grossly inappropriate and unconstitutional to suspend that right at sporting venues and attempts to do so are likely doomed to failure when faced with litigation.
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