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UNC-Duke and Cheering Speech

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

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Last night's UNC-Duke game provides a good opportunity for two quick thoughts on cheering speech. The game was another chapter in what is supposedly the nastiest and deepest rivalry in all of college sports, played at the arena whose fans get the most attention for their clever/rude (depending on your point of view) cheering speech.

First, Duke fans wore Carolina-blue ribbons in memory of Eve Marie Carson, the UNC Student President who was killed last week. I assume there was a moment of silence, but I did not see the beginning of the game. A wonderful gesture--and an illustration of precisely why cheering speech is so important and why I define it as such a broad category of expression. Sporting events are a unique secular gathering place at which we can express, as a collective, a great many messages and ideas (here, ideas of sadness and mourning and sympathy). Of course, many of these messages, including the memorial here, have absolutely nothing to do with sports or the game. That's the point--what touches "the game" is enormously broad.

Second, early in the week, Coach K met with Duke students to talk about their cheering and urging them to keep it classy and supportive of Duke and to be particularly sensitive in light of the events of last week. (H/T: Deadspin). Good for him and for Duke. Because, ultimately, the key to controlling fan behavior is for those in charge (coaches, university administrators) to convince the bulk of students to keep it clean and to have the student-section mores self-police, for social pressure to bring everyone into line. That, in fact, is how we develop and maintain a functioning civil society--not through government coercion, but through social pressures.

But here is a question: Suppose one asshole decided to depart those mores by displaying a sign saying "Our President Lives, How 'Bout Yours?" Without question this is insensitive and obnoxious and rude and disrespectful. But it is not defamatory; it is not a targeted threat; it is not obscene (or even indecent); and it is not fighting words--it falls in no unprotected category of speech. So is there any theory of free expression (other than a sort of Borkean, the-First-Amendment-only-protects-political-campaigns-and-policy-discussions position that never has gotten anywhere) on which that sign should be formally punishable (put aside for the moment that Duke is a private university)?

Full post as published by Sports Law Blog on March 09, 2008 (boomark / email).