NO SELF-RESPECTING FISH WOULD BE WRAPPED IN IT :

M's stance, not word, offensive (LAURA VECSEY, April 30, 2002, SEATTLE POST-INTELLIGENCER)

A few ticket holders dialed up local TV and radio stations to wage a public protest about the way the Mariners banned them from entering Safeco Field if they wore "Yankees Suck" T-shirts.

The shirts were sold near the ballpark by vendors hoping, like the Mariners, to capitalize on the high-drama games. The vendors were no rubes. Not when they so aptly tapped into the passions of Mariners fans who want to turn the tables on chanting Yankees fans.

A few things for the record here, before proceeding:

The Yankees do not "suck."

The Mariners do not "suck."

The word "suck" stinks.

But the word is definitely not obscene -- and that is part of the Mariners' problem in confronting the backlash against them.

Now these fans who want the freedom to express themselves -- no matter how idiotic they look -- have a bigger, more amorphous foe than the Yankees.

Now the fans have a stadium policy that one University of Washington Law School professor calls "arbitrary."

"And stupid," said Stewart Jay, a Constitutional law expert.

Jay said he might even call the code "unsportsmanlike" if the Mariners resort to banning Safeco Field spectators from wearing, say, the logos of National League teams.

"I think they have a vagueness problem, because the word 'sucks' is certainly not obscene. Short of a pornographic image, there is no basis for restricting what kind of words or insignia can be worn. If it was an entirely private stadium, it would be completely different," Jay said.

As a First Amendment expert, Jay cited the famous Supreme Court case (United States vs. O'Brien, May 27, 1968) in which the court ruled that a man could wear a T-shirt into court that said: "Blank the draft."

The rule of thumb for vulgarity is cover your ears, avert your eyes.

That includes a court of law, one of the most public spaces around -- other than a $517 million publicly owned ballpark.

"The average person would regard Safeco Field as owned by the state. (It is owned by the Public Facilities District and leased to the Mariners.) They wouldn't understand the technical nuance that the Mariners rent it. I think there is serious trouble of exposing themselves to a lawsuit," Jay said.

The Mariners have posted their code of conduct in about 50 places around the stadium. It outlines the parameters of a paying customer's entertainment experience, which the Mariners say is their attempt to hold down boorish behavior:

"Our staff will proactively intervene to support an environment where guests can enjoy the baseball experience free from the following behaviors:

* Foul/abusive language or obscene gestures * Intoxication or other signs of impairment related to alcohol consumption * Displays of affection not appropriate in a public, family setting * Obscene or indecent clothing * Any disruption to the progress of the game by guest's actions or unauthorized persons on the playing field * Guests seated in a location other than their ticketed seat." [...]

One person's obscenity is another person's pleasure. And right.

This column is wrong in so many different ways it's impossible to address them all, so let's just take the easiest. Here's the relevant First Amendment provision :

Congress shall make no law...abridging the freedom of speech...

It is obvious on its face that this applies only to government action. The Mariners, even if they are leasing a public ballpark, are a private party and as such not bound by the 1st Amendment. They need not provide either employees or customers with "freedom of speech." If you doubt that this is true, ask yourself if they are similarly required to let customers exercise all their other rights at the ballpark, like bringing guns to their games. Assinine idea, isn't it?

Now it might be the case, as the story hints, that they have created a public forum such that the Bill of Rights could be implicated. Of course, if you want to assert such a claim you have to try to get around the awkward fact that they charge admission and so are, by definition, exclusionary. Rights would be fairly illusory if folks could charge us money to exercise them, wouldn't they?

The legal claim Ms Vecsey is making is utterly absurd. You have a "right" to be a vulgar philistine in public, but not in someone else's private domain; just ask your boss.

But what of the sort of "It's all fun and games" argument and the notion that the Mariners are being humorless. Well, years ago the Dodgers had a gay black outfielder named Glenn Burke. Suppose in this same spirit of vulgar fun the fans in Seattle showed up with t-shirts that said "Lynch the [sexually-oriented expletive][racial epithet]"? Does anyone seriously believe that the Ms Vecseys of the world would be defending these fans' "pleasure", their "right" to be obscene? Considering the reaction to John Rocker's ill-considered comments of several years ago, it seems safe to assume not.

Posted by Orrin Judd at April 30, 2002 3:42 PM