The fan: a clear and present danger

In October 1999, I attended a Saturday night football game in Charlottesville with my son (then a UVa student) between the Cavaliers and Florida State University. The Seminoles star player, receiver Peter Warrick, had been convicted earlier that season of theft from a department store in Tallahassee.

We sat in the UVa student section behind the FSU bench. Many of the students wore orange jump suits with Warrick’s name stenciled on the back. They shouted slurs and offensive remarks at him throughout the game. Many signs called him a jailbird. The harassment was pretty intense and annoying for the entire FSU team. Still, the players tried to ignore the taunts and focus on the game.

That is, until the UVa fans began to throw plastic bottles of water and soda toward the FSU bench. I told my son that if one of those bottles (defined under Virginia law as a “missile” when thrown in that manner) hits those players, there would be 320-pound linemen charging the stands. Late in the third quarter, FSU scored a game-breaking touchdown. The UVa students responded by bombarding the opponent’s bench area with full and half-full plastic bottles of liquids. This time, they were on target and the FSU players began to charge the stands. Fortunately, several Virginia State Troopers stopped them and then warnedthe fans. The game ended without further incident.

I thought about this situation after last week's fight between several Indiana Pacer players and Detroit Piston fans. Three players -- Ron Artest, Jermaine O’Neal and Steven Jackson -- have been roundly condemned for going into the stands after a fan in the arena hit Artest with a cup of liquid refreshment. NBA Commissioner David Stern has punished each of these players with a lengthy suspension.

The NBA’s “brand” has been further hurt by this incident. Many of the league’s players have had highly publicized off-court involvements with law enforcement. A number of sport writers have blamed the hip-hop culture for creating a “thug” atmosphere in professional basketball.

All of this is partly true. The other half of this equation are fans (like those UVa students) who feel entitled to say (and then throw) anything they want at collegiate and professional athletes. They feel they have unfettered rights of free expression to provoke the players.

They don’t. As long ago as 1919, Justice Oliver Wendell Holmes articulated what has become one of the most famous analogies in law -- falsely shouting fire in a crowded theater -- to demonstrate what constitutes a “clear and present danger” and the limitations to First Amendment guarantees of speech.

In the 1942 case of Chaplinsky v. New Hampshire, the court outlined the “fighting words” doctrine -- a class of speech that “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Like obscenity, sexually harassing speech and child pornography, “fighting words” are a category of speech that is not protected by the First Amendment.

In Cohen v. California (1971), the court redefined fighting words to those “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions.”

The point? If you direct “fighting words” to the average American citizen, you are likely to get a fight. This is as true on the public sidewalk, or at Scott Stadium on the UVa campus, or in the Auburn Hills arena where the Detroit Pistons play. A high-priced ticket to either a collegiate or professional sports event doesn’t provide legal immunity from the inevitable fight that will occur when fighting words are uttered. Spectators who hurl vicious and offensive taunts at players at athletic events should recognize this legal and societal reality.

This “entitlement” to verbally abuse athletes has been fostered by college athletic directors and the commissioners of professional sports who have told security personnel to wait until the last possible minute before stopping a possible riot. It worked at the UVa/FSU game. It didn’t last week in Detroit. Like politicians who don’t want to alienate their base, the athletic directors and commissioners want the fans to continue to spend money on merchandise and buy beer -- in exchange for not enforcing the law against fighting words.

It is not only basketball where violence between players and fans erupts. Last summer, a Texas Ranger relief pitcher threw a chair in the stands at Oakland, and broke a fan’s nose, after a series of verbal exchanges. L.A. Dodger outfielder Milton Bradley went into the stands after a fan this past season as well. In 2000, most of the Dodger team went into the bleachers at Wrigley Field. A fight erupted in the N.Y. Yankee bullpen between players and fans during the 2003 playoffs with the Boston Red Sox. These fights happened with regularity in the NHL.

The common denominator? “Fighting words” by the fans. As such, many fans at sports events often represent (in the words of Justice Holmes) “a clear and present danger” to an otherwise peaceful environment. The solution? Enforce the law against such utterances.

If college athletic directors and professional sports commissioners are not going to enforce this law, expect more fights and violence at athletic events. “Thug life” may well now be an unfortunate aspect of collegiate and professional sports. So is its Siamese twin -- “tasteless” fans who (erroneously) believe the stands provide an invisible barrier that protects them from the physical consequences of the violence they incite by their constitutionally unprotected expressions.

Guys like Artest and Bradley do indeed need anger management. Many fans need “potty training” as well. People like David Stern,who in the name of profit maximization turn their heads to fighting words at athletic contests, also need to stop being “enablers” of both groups.