A Green Bay Packers fan filed suit against the Chicago Bears in federal court for the Northern District of Illinois on June 16, alleging that the Bears violated his First Amendment rights by barring him from wearing clothing supporting an opposing team while attending on-field events.
Russell Beckman, a pro se plaintiff, is a season-ticket holder for both the Bears and the Packers. Beckman is a Wisconsin resident, but he holds on to his Bears tickets solely so he can attend the Bears-Packers game every year; each time clad in a Packers jersey with layers of green and gold beads.
While fan expression is a long-standing tradition and expected part of sports, the First Amendment rights of fans has become a widely debated issue. This dispute, in large part, is due to the fact that there have been very few precedential cases that deny, interpret or establish fans’ rights.
The issue becomes further complicated when it involves stadiums and arenas constructed with some public financing or built on state land or land operated by a municipal authority.
As a general rule, the First Amendment binds only government actors, not private entities. Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295 (2001).
In this case, Soldier Field is owned by the Chicago Park District and leased to the Bears for its use, meaning the stadium could be viewed as a public entity. In that setting, a government cannot force citizens to surrender constitutional rights, and Beckman could prevail.
Beckman’s specific issue lies with the Bears’ policy for a season-ticket rewards program the team launched in 2014. The Season Ticket Holder Experiences program offers rewards points to longtime season-ticket holders that can be redeemed for a series of game day experiences at Soldier Field.
Beckman says in his complaint that he spent his rewards points in 2014 and 2015 on an offer to stand on the edge of the field during pregame warmups and he, and his friends, wore Packers gear without issue.
Last season, he used his rewards points again for the pregame warmup offer for the Bears-Packers game in December. However, a few days before, he received an e-mail from the team with details for the event that stated “no opposing team gear would be allowed.”
After exchanging e-mails with Bears ticket office employees who reiterated the rule and stated clearly that Beckman would not be allowed to participate in the experience if he wore his Packers apparel, he attempted admission anyway and was denied.
After the incident, Beckman mailed a “written appeal” to NFL commissioner, Roger Goodell, where he requested the commissioner intervene in the dispute and order the Bears to reverse the rule.
Goodell did not respond, and a few months later Beckman received an e-mail from the Bears informing him that, once again, he had accumulated points through the Season Ticket Holder Experiences program that could be used for a pregame warmup field experience.
Since the rules still clearly stated “no visiting team clothing allowed,” Beckman filed his action in the U.S. District Court.
Beckman is not suing for monetary damages, except to recoup court filing fees. He only wants the Bears to reverse their policy and allow him to take part in on-field experiences wearing his Packers gear in upcoming seasons.
While there have been precedent cases involving fans’ First Amendment rights, they have mostly addressed fans’ right to cheer, or rather jeer, at sporting events. In these cases, courts have held that an exemption exists to the principle of free speech for “fighting words.” Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that speech directed at producing imminent lawless action or likely to incite such action is not protected speech).
While Beckman’s Packers gear is not likely to incite lawless action, he may still be subject to the Bears’ protocols unless he can prove that the team is a state actor, and therefore, bound by the First Amendment. Beckman notes several times in his complaint that, “Soldier Field is a public facility financed and owned by the [c]ity of Chicago.”
Beckman is likely to further this argument as the case progresses and may argue that the Bears are playing and operating in a publicly owned facility, and therefore, are acting under the color of law for all intents and purposes.
In Ludtke v. Kuhn, a federal court accepted a similar argument, holding that New York City’s involvement with Yankee Stadium caused Major League Baseball’s policy excluding accredited female sports reporters from locker rooms to be state action within the auspices of the 14th Amendment. Ludtke v. Kuhn, 461 F.Supp. 86 (S.D.N.Y. 1978).
The court said that state action may be found where the direct perpetrator of allegedly discriminatory acts is, even if a private entity, “entwined” with an agency of the state. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
The court also noted that state action may be found where the parties enjoy mutually conferred benefits or where the relationship between the public and private entity is one of interdependence.
In Ludtke, because the Yankees’ facility was maintained and improved with the use of public funds, and the annual rent paid to New York for the use of the stadium depended directly on the drawing power of Yankee games, the court held the city and the team shared a relationship of interdependence. Thus, the Yankees were state actors and could not deny the reporter her constitutional rights.
Here, the Chicago Park District owns Soldier Field, and the Bears lease the publicly financed stadium. While the Bears keep a substantial portion of the revenue generated within the stadium, the public sees numerous community benefits flowing from the stadium, especially in the local area.
It is possible that a court could view the Bears’ relationship with the city as one of interdependence, depending on their lease terms, and, thereafter label the Bears as a state actor, prohibited from denying Beckman his First Amendment right to free speech.
Bears officials have declined to comment on the lawsuit, but both parties are likely hoping to resolve the case in the next few months, as the Packers are set to next meet the Bears at Soldier Field on Nov. 12.