The Yankees suck (at protecting the First Amendment)!

by Zachary J. Lee

According to a lawsuit filed in April against the New York Yankees and the City of New York, Bradford Campeau-Laurion was forced out of a Yankees game on August 26 last year when he attempted to leave his seat during a rendition of “God Bless America.” The lawsuit alleges that an NYPD police office, who was being paid by the Yankees, grabbed Campeau-Laurion’s arm and twisted it behind him before Campeau-Laurion could take a step. Two officers then escorted Campeau-Laurion down a series of ramps and out of Yankee Stadium. Campeau-Laurion also alleges that as he was being led out of the stadium, one of the officers said, “ Get the hell out of my country if you don’t like it.” An NYPD spokesperson relayed a substantially different version of the facts, saying that Campeau-Laurion was thrown out for “standing on his seat cursing, using inappropriate language and acting in a disrespectful manner while reeking of alcohol.” Factual dispute aside, those familiar with baseball may be interested to know that on August 26, the Yankees were playing the Boston Red Sox. For those unfamiliar with baseball, the rivalry between the two teams has produced its share of behavior “reeking of alcohol.”

Because of the sensitive issues relevant to this case, the Red Sox/Yankees rivalry being up there with patriotism for some folks, Campeau-Laurion has understandably caused a bit of controversy. He claims that his First Amendment rights were violated, though, and First Amendment controversies do not always make for polite dinner conversation. See Cohen v. California, 403 U.S. 15 (1971).

If the facts are more or less what Campeau-Laurion asserts in his suit, the basic First Amendment issues seem relatively clear cut: Yankee Stadium policy effectively forced patriotic actions by requiring Campeau-Laurion to stay in his seat during the song, and Campeau-Laurion was, in effect, making political speech by choosing to ignore that song. The Supreme Court has ruled that the First Amendment is violated when students are forced to stand for the Pledge of Allegiance. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). The Barnette Court dealt specifically with religious objections to standing for the Pledge, but the Court’s reasoning is important to Campeau-Laurion’s suit as well.

Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.

Id. at 644. The difficult issue in the lawsuit, as pointed out by Professor Howard Wasserman on PrawfsBlog is finding state action. Professor Wasserman asserts that

Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.

Without going into detail on Professor Wasserman’s analysis, though I do recommend reading his full article, suffice it to say that state action can be found for all three groups of defendants. The Yankees can be seen as state actors under the theory that they had a symbiotic relationship with the government. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Alternatively, the Yankees are state actors under the “entwinement” theory. Brentwood Academy v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288 (2001). The police were in uniform, and thus though the Yankees were paying them during the game, the officers could be seen to be acting under authority of the law. As Professor Wasserman lays out, the police chief and New York City itself are clearly state actors.

Obviously, the facts of Campeau-Laurion’s forced exit from Yankee stadium are in dispute, and if the court finds that he was kicked out because he was drunk and disruptive, his chances to succeed with his First Amendment claim are slim to none. That said, if the facts are found to be as he alleges them, he will likely prevail in his lawsuit and Red Sox fans will have something else to yell about the next time the Sox play in New York.

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