Legal Commentary

During my prior stint here, I wrote a bit about my past, present, and future interest in fan expression at sporting events, what I call "cheering speech." There has been a great deal of attention paid to fan behavior this college basketball season. Two things happened with respect to last night's North Carolina-Duke men's basketball game that illustrate key principles of this category of expression. The game was played at Duke's Cameron Indoor Stadium, widely haled as the best home court in college sports, with the smartest and sharpest student fans engaged in the cleverest (and occasionally most tasteless) cheering speech.

First, Duke students worse Carolina-blue ribbons in memory of Eve Marie Caron, the UNC Student President who was murdered last week. I assume there was a moment of silence, but I did not see the beginning of the game. This was a wonderful gesture. And it illustrates the nature and breadth of cheering speech. Sporting events are a unique and singular secular gathering place, a place people regularly gather to engage in expressive activity. A great many messages and ideas get expressed through and around a ball game--often, as here, ideas and messages of sadness, mourning, and sympathy, an expression of collective grieving of a community. Of course, strictly speaking, these messages have nothing to do with sports or with the game. But that is my broader point about cheering speech--it covers everything that touches or surrounds sports and the game, including a great deal of broader social, political, and community issues. The consequence is that the speech at sporting events does have value and is entitled to significant First Amendment protection.

Second, early in the week, Duke Coach Mike Krzyzewski met with Duke students (video above) to talk about their cheering; he urged 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. 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, to change student-section mores with respect to the type of cheering speech that is acceptable, and to get fans to self-police, for social pressure to bring everyone into line. In fact, that is how we develop and maintain a functioning civil society more broadly--not through government coercion, but through informal societal presses. I think that might be what is so special about the example of shaming punishment that Doug wrote about last week--the shaming came from someone other than the government, which changes how we might view it.

But a question after the jump that gets to the heart of the problem of cheering speech at public university arenas.

Suppose one fool decides to ignore those mores and social pressures by displaying a sign saying, for example, "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 because not a directed face-to-face insult; 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 attained wide following, on which that sign should be formally punishable (ignore for the moment that Duke is a private university)?