In the United States, free speech rights extend to sports fans. On the other hand, private actors, such as sports teams, may restrict speech because the U.S. Constitution’s First Amendment only applies to the government and other “state actors.” A federal trial court in Illinois recently explored the line between state actors and private actors in a case involving a football fan’s wearing an opposing team’s clothing while on the state-owned field of a private actor professional team. (Beckman v. Chicago Bear Football Club, Civ. No. 17-cv-04551 (N.D. Ill. Dec. 13, 2018).)
The case has its origins in 2003, when a long-time fan of the Green Bay Packers football team purchased season tickets to the Chicago Bears’ games directly from the owner of the football field: the Chicago Park District (“CPD”), an agency of the city. CPD’s ownership of the field and the fact that the stadium is a publicly financial facility is not questioned. CPD entered into an operating agreement with the Chicago Bears regarding the use of the field.
In later years, the plaintiff paid for his season tickets with a check made payable to the team, rather than to the CPD. The team created a special benefit for certain season ticket holders: the opportunity to walk out and stand on the northeast corner and end zone of the field during warm-ups.
As a long-time fan of the rival team Green Bay Packers, the plaintiff wore Green Bay Packers gear on the field during the Chicago Bears’ warm-ups until December of 2016, when he was prohibited from entering onto the field in that attire. The Chicago Bears had enacted a rule that permitted fans to wear team gear on the field, but only Chicago Bears team gear. (Fans remained free to wear any team’s gear in the seating area.)
He filed a lawsuit, claiming that the Chicago Bears had violated his First Amendment free speech rights, and he sought a temporary restraining order and preliminary injunction to prevent the team from enforcing the rules until there was a full trial.
The trial court stated that the standard for a temporary restraining order requires that the plaintiff show:
- A likelihood of success on the merits;
- Irreparable harm;
- No adequate remedy at law; and
- Balance of harm to the parties and the public favors the party requesting the injunction.
Because of the importance of the fundamental right of free speech, if a First Amendment violation occurs, irreparable harm is presumed, and there would be no adequate remedy at law without an injunction. So the entire motion turned on whether the plaintiff could show some likelihood of success on the merits and that the balance of harms tipped in his favor.
Because the football team is a private corporation and not a government agency, it is not a “state actor.” In order for the plaintiff to maintain a First Amendment claim, he had to establish such a “close nexus” between the state and the conduct that the conduct could be fairly treated as conduct of the state itself.
In this case, the plaintiff claimed that the team’s actions could be attributed to the state because:
- The season ticket holder program was subject to the approval of the CPD, per the operating agreement;
- The stadium was built with public money;
- The plaintiff’s first season ticket was purchased from the CPD; and
- City of Chicago police officers patrolled the sidelines of the field.
On the other hand, the team pointed out that there was no caselaw holding that state financing of a stadium was sufficient to provide “state action,” especially because stadium ownership was not a traditional state function. With respect to the police officers, the court was unable to determine whether they were on the field for routine security or for other purposes. Finally, the defense provided an affidavit of the team’s General Counsel construing the operating agreement.
The court found, at this early stage of the case, that the General Counsel’s affidavit tended to show that CPD was involved in the season ticket holder program, and that ticket holder status did determine the right to participate in on-field programs. Therefore, because the plaintiff had to show only a “better than negligible” chance of success, the court found for the plaintiff on this element.
This minimal showing on likelihood of success on the merits meant that the plaintiff had to show that the balance of harms suffered by the parties and the public tipped in his favor if injunctive relief were granted at this stage. The court found that, because the team was a private actor, if there was no state action the team’s property right to exclude speakers with which the team did not agree would be infringed by an injunction. In other words, the balance of harms was found to be equal between the parties, favoring neither side.
As a result, the court denied the plaintiff’s motion.
Any U.S. team using a publicly owned or publicly financed facility should take note of this case and proceed carefully with any restrictions on speech.