The First Amendment to the U.S. Constitution is over 221 years old and yet maintains its vitality; its ability to accommodate the modern era and yet remain anchored to its origins.  The text reads, “Congress shall make no law…abridging the freedom of speech, or of the press.”  The interplay of general language and judicial review keeps the First Amendment alive.

Over time, the First Amendment has been interpreted to apply to the states and, thus, it is not only Congress that cannot abridge speech or the press, it is state and local government as well. And “no law” does not really mean no law at all.  The courts have allowed advocacy of illegal action to be punished; attacks on reputation and privacy to be regulated; words that are lewd, obscene, profane, or “fighting words” to be regulated; obscene films to be banned, and so on.

The courts never bought the absolutist position held, e.g., by Justices Black and Douglas (i.e., no law means “no law”), but have created a large and growing body of law designed to balance, to accommodate, to grow and change.  All of which leads me to the case on point: When you purchase a ticket to a sporting event, let’s just say an NCAA basketball playoff game, what rights of vocal protest as a fan have you also purchased?

A recent New York Times article by Bill Pennington, (3/29/12), dealt beautifully with this issue.  It was stimulated by an event at a North Carolina game when two former players sitting behind the scorer’s table, not drunk or using obscenities, were ejected from the arena at the request of a referee for protesting the official’s calls.  They were complaining, yelling, and a bit acerbic. Acerbic!?  Let’s push it a bit further: Suppose their faces were painted some obnoxious colors and they wore a wolf’s head to look even more absurd and yelled their objections via a megaphone?  Would it matter if their yelling was, “we respectfully object to your flagrant abuse of the rules” or “you are friggin idiots in stripped shirts”?

What matters then; what you say?  How loud?  How long?  When?  All of the above?

In my next post I will explore the limits of free speech at sporting events relying heavily on Pennington’s excellent reporting and my former life as a basketball player and professor of constitutional law.

To be continued.