Many college stadiums have rules about conduct. This professor says they can be unconstitutional

The University of Arizona will visit Arizona State University on Friday for the annual Territorial Cup football game. Many college stadiums have signs or announcements about fan behavior — things fans cannot say or do, and what will happen if they do them.

But Neal Ternes argues those rules may be unconstitutional.

Ternes is an assistant professor of sport management at Northern Illinois University, where he researches sport and spectator experiences at colleges and universities with a focus on the First Amendment.

He and a colleague analyzed every FBS college athletic department’s posted stadium speech policies. They found more than 90% of the public colleges and universities that posted restrictions on what fans can wear, do or say at games had rules that violated the principles of the First Amendment — and that includes schools in Arizona.

But Ternes said he doesn’t think athletic departments are necessarily acting maliciously with these policies. Ternes spoke with The Show more about this, and he started with those findings, and what they mean.

Full conversation

NEAL TERNES: I think the way I would phrase that is that their policies as written are not compliant with the First Amendment. I think one of the barriers, one thing I really want to emphasize with this research compared to Praxis, what's going on in the field, is that we specifically measured the wording and the text of what's going on in their policies. We still are looking at and are continuing to research questions of enforcement.

Miami University

/

Handout

So it's the difference between the rules as written and the rules as applied. So I want to be careful to say that the rules as written do not work with the First Amendment. We're still looking into the rules as applied.

MARK BRODIE: So there might be an issue where, for example, a stadium says you cannot say this kind of thing, but what happens to a fan if they do say that kind of thing?

TERNES: Typically, if a fan is caught violating these policies, a lot of times they will be escorted out of the stadium and asked to leave. In a lot of these policies, there is explicit language that their ticket privileges may be revoked. And they're not allowed to purchase tickets through the athletic department again, which can make it a little bit more difficult and challenging for them to access future athletic events.

Depending on other behavior, if they are complicit in other types of illegal behavior, such as public intoxication, they can also face charges for that as well.

BRODIE: Well, so what is so problematic about these policies? What are schools saying that fans can't do that maybe they should be allowed to be able to do?

TERNES: They're really problematic in two different ways. First, they are very specific in what they ban. And second, they are very vague in many cases. And I realize that sounds contradictory.

BRODIE: Yeah.

TERNES: But when you look at the text of those policies, sometimes they're banning language that is very specific. So I'll throw out a couple examples local to you. So the University of Arizona has a policy and I'm going to read it directly off here that says: “behavior and language based on race, color, national origin, sex, religion, age, disability, veteran status, sexual orientation, gender expression, or gender identity can have you removed from an Arizona athletic event.”

Now that's a very specific list, but the problem is it says all behavior and language based on those things. We look at this as well. I am myself a white man with German ancestry. If I go to an Arizona athletic event and buy a soft pretzel, am I expressing my national origin, its behavior and language based in that? Does that get me ejected? And it's confusingly written in such a way where it is. It really applies to everything and nothing at the same time.

And that might seem like an absurd example, but the thing that we've gone back to in the example we've come back to is if I were to show up at one of these events with a sign that said Trans Lives Matter or the opposite political view, only women belong in women's sports or something of that nature, do I get kicked out? And does one of those get kicked out and not the other? And this doesn't specify that. And that's a real problem because it puts a lot of judgment calls on the shoulders of stadium officials.

And the Supreme Court and the U.S. court system has been very uniform in those types of judgment calls are what we call overbroad. They give way too much power to government entities to make decisions about what speech is acceptable and what's not.

BRODIE: So what would be a better way to do that? Because there's obviously been so much conversation, in the last weeks and months about the First Amendment and, what is a acceptable speech and what is maybe not acceptable, what is OK, but maybe in bad taste.

So how should schools be going about trying to create an environment where fans feel welcome and fans feel like they can express themselves, but also maintaining, you know, everybody's First Amendment rights?

TERNES: There are a couple of things, especially now that we think this is a great opportunity. And when we were writing this paper much earlier this year, we sort of really weren't weren't anticipating the current political climate that has sort of manifested over the last few months.

But what we would see as the relevant motions or what needs to be done for athletic departments is focusing back to first principles. How do we actually want these stadium atmospheres to work and how do we write policies that make sense when we think about not just a general commitment to the First Amendment, but the extremely important role that the First Amendment plays on colleges and university campuses.

The First Amendment is essential to so much of what we do on college and university campuses, and the sports stadiums that we have are often the most public forums where people get a chance to interact with our colleges and universities. When it comes to writing policy to that point, we really look at actually following the language of local and federal law when possible.

A lot of the behavior that, especially my colleague ... and I talk about quite a bit, that we want to make sure that we're not saying, hey, this is OK, is language that could be construed as harassment. If you imagine going to a basketball game at Arizona or Arizona State and someone is sitting courtside and continues to get in the ear of a ref or a player, and we've had some pretty horrific examples of that. That type of behavior, harassment is illegal.

But we also need to see like where is the line on harassment, what kind of behavior constitutes harassment? Certainly the fan who is repeatedly targeting a single player or a single official or another coach about that is harassing that person. Someone who's sitting back in row 50 in the cheap seats and the nosebleeds who they can't even hear them. The harassment has to be received. So that is a distinction there that needs to be made.

And I think as a whole, college athletic departments could do a much better job of narrowly tailoring their policies to prohibit the kind of behavior they're actually looking to prohibit, which is harassing behavior and behavior that is really meant to disrupt, to psychologically disrupt, and harm people, rather than trying to target a much wider swath of behavior that ends up, as we found, potentially limiting political speech, potentially limiting just the general conversation that happens during any sporting event.

BRODIE: So you referenced what the U of A's policy is. Is it safe to say that ASU's policy is somewhat similar to what Arizona's is?

TERNES: ASU's is similar, but a little bit different. ASU's, and I have it pulled up right here so we can talk about it straight away, the first line, and they have a bullet pointed list on things that are prohibited, is wearing clothing deemed obscene, indecent, and or offensive. Obscene has a very specific legal term in First Amendment law, but indecent or offensive are very subjective standards.

And again, this goes back to it puts a lot of the onus on stadium officials to decide what is indecent or offensive. And what can we kick out and what can we not kick out. And that simply is an amount of power that the government says you should not have in that situation.

Moreover, they go on to it goes on to say any threatening, vulgar, abusive, racist, sexist or demeaning marks or gestures. The better part of that is it's directed towards coaches. So there is that element of harassment there. They also talk about threats which they can limit and they can cease actionable.

But one thing that we've noticed a lot is some of the way these are written, especially when they aren't necessarily as targeted as saying they're directed towards a specific person or they're directed towards a specific group that are employees of the institution. They might not be as enforceable as harassment as a case where someone's yelling those types of comments to an official or a coach or even a player.