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How the 1st Amendment applies to political protests by fans in stadiums

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These attendees had a right to political demonstrations. But in Wisconsin’s stadium, UW had the right to forbid what it describes as “a symbol of one of the vilest forms of racial hatred.”

A day before Halloween, two fans at Camp Randall Stadium in Madison, Wisc. depicted Hillary Clinton and President Barack Obama as being hung from a noose by Donald Trump in a sea of red.

The fan with the noose around his neck wore the Obama mask on the front of his face and a large Clinton poster on the back. The imagery is clear: it’s a portrayal of a fictitious lynching of a black man as some form of political satire.

The Wisconsin State Journal details what happened to the fans that night:

According to UW-Madison, Camp Randall Stadium's guest services staff asked the person wearing the noose to take it off, which he agreed to do during the first half. The fans were allowed to stay in the stadium, officials said.

On Monday, UW-Madison spokeswoman Meredith McGlone said, "Stadium staff monitored the fan to ensure that he did not put the noose back on and was prepared to remove him if he did."

However, Wisconsin State Journal photos taken late in the third quarter of Saturday's game show the duo walking around Camp Randall Stadium with one of them once again wearing the noose and a mask of Clinton.

Marc Lovicott, a spokesman for UW-Madison police, said the department monitored the costume wearers with a camera throughout the game, but "from our vantage point, it appeared as if the noose had remained off."

This prompted a discussion among sports fans, the general public, and commentators about the First Amendment and freedom of speech. The university issued a statement Saturday night, which read in part:

The costume, while repugnant AND COUNTER TO THE VALUES OF THE UNIVERSITY AND ATHLETIC DEPARTMENT, was an exercise of the individual’s right to free speech. The university also exercised its rights by asking the individual to remove the offensive parts of the costume.

Protests have been front and center in the sports world after Colin Kaepernick began a trend among some athletes. But those protests, which typically involve silently taking a knee, do not involve anything that could be interpreted as acts of violence or threats.

While some might see a public university using government censorship to forbid part of the costume as a slippery slope, there are certain rights you do not have in any created public forum, such as a stadium.

The disclaimer on the back of your ticket says a lot about what you can and can’t do in the stands.

Obtained by SB Nation
Obtained by SB Nation

The applicable portion of the disclaimer reads:

If the ticket holder’s conduct endangers or disrupts any portion of the event or players, coaches, officials or others attending the event, the university may remove the holder from the facility and/or revoke the holder’s season tickets as provided by Athletic Board policy.

Wisconsin’s policy for carry-in items prohibits “items deemed dangerous or inappropriate.” It allows Halloween costumes, but costumes must be, among other things, “of an appropriate nature.”

The carry-in policy also states that you can’t bring anything in that could be considered a weapon or dangerous. A noose is very much a weapon and capable of endangering others, as the ticket policy prohibits.

It was that policy that chancellor Rebecca Blank used to justify the fact that these individuals have had their season tickets revoked. She said this, in part, on Nov. 7 to the school’s student government.

I’m limited in how much I can say today, but can announce that we’ve indefinitely revoked the season tickets of a pair of individuals related to this situation. We took this action because the person using the tickets brought a prohibited item into the stadium and failed to follow the direction of our event staff.

Speech can be deemed disgusting and still be legally acceptable, even when invoking clauses for speech unprotected by the First Amendment.

For starters, the concept of “hate speech” is not an official legal tenant. It’s just a term we use to label speech we see as wrong.

Hate speech is different from hate crime. For it to be a hate crime, there has to have been an actual crime, according to the FBI.

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. For the purposes of collecting statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate itself is not a crime—and the FBI is mindful of protecting freedom of speech and other civil liberties.

Without physically harming someone or a threat to do something specific to somebody (more on that in a second), we don’t have a hate crime.

Lyrissa Lidsky teaches a course in constitutional law at the University of Florida. She says the combat for speech one disagrees with is simply more speech.

“It’s our obligation as citizens to speak up when other people are speaking in ways that’s offensive,” she said. “It’s not the government’s job to police it. It’s our job to say it’s inconsistent with social norms and to speak up and speak out.”

For the speech to be illegal, it has to be tagged with something else, and it must actively promote violence. This presidential election could render moot any legal argument about those “somethings else.”

There are a few things the First Amendment doesn’t cover.

These include “fighting words,” which are defined as:

“[T]hose which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Also: speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

As far as direct threats to either Clinton or Obama, the director of the Secret Service, Joseph Clancy, told CBS News in June that "I would say the candidate threat picture is slightly elevated. People are bolder ... we have to be prepared for that."

In August, debate raged over Trump’s comments about ‘‘Second Amendment people” doing something about Clinton. According to CNN, the Secret Service spoke with the Trump campaign over the remarks, but that’s something Trump refuted at the time.

In 2014, the Washington Post reported “5 to 10 percent” of direct threats to President Obama were racially based, citing sources. The Secret Service has an understandably low bar for what constitutes a threat to the president.

Members of the protective intelligence division consider even the most minor suggestions of harm to the president worthy of investigation. One agent, who spoke on the condition of anonymity to discuss internal agency operations, described being instructed to interview people who were intoxicated in a bar and were overheard describing how they would like to hurt the president.

...

One of the biggest challenges is finding the context to any violent or negative reference to the president, especially if agents are trying to track a plot in progress.

While the hanging and burning of effigies has a long history in politics, hanging an effigy of Obama may be a bit of a different story. In 2012, a California man got a visit from the Secret Service for a Halloween decoration that had an effigy of Obama in a noose.

Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida, said this particular speech at Wisconsin isn’t relatively outlandish, which could inspire a commentary as much on our political climate as on the specifically depicted lynching.

“I think the whole context of it has to be made clear,” Calvert said. “If the person holding it is wearing a Trump mask and the backside of the Obama mask is a Hillary mask, I think in this political atmosphere, most people are gonna say this is the kind of rhetoric we expect, and they’re not gonna take it seriously. It almost cuts against it, because we kind of expect this in politics.

“In a way, it almost cuts in the other direction, because these people are just trying to get on TV,” Calvert said. “They’re obviously exercising really bad judgement and really poor taste, but unfortunately, the First Amendment generally protects poor taste.”

So let’s circle back to the university.

The lynching portrayal was decried by athletic director (and former football coach) Barry Alvarez and UW-Madison chancellor Rebecca Blank in a joint statement. It reads, in part:

What we saw Saturday night at Camp Randall was despicable and caused an immense amount of pain throughout our community. And it should have, as a noose is a symbol of one of the vilest forms of racial hatred and intimidation in our country’s history.

As many have noted, thousands of African-Americans were lynched in the United States from 1882-1968. We can’t ignore the significance of this history and we can’t underestimate the symbolism of a noose to all those who see that image today.

A noose displayed in this fashion has no place on campus. Together, the Athletics Department and the University’s Office of Legal Affairs are initiating a review of stadium policies with the goal of ensuring that symbols of this type are not displayed in our stadium again.

Alvarez doubled down on Wednesday.

The school is reviewing its stadium policy and has promised a change before Wisconsin’s next home game on Nov. 12. Alvarez met with African-American community leaders as well as students on Wednesday.

While it may be the individual’s right to protest, it is UW’s right to forbid actions it sees as indicative of violence and intimidation, to promote civility, and to stand against images that have long been used to depict the murder of black Americans.