By Robert O'Neil
Professor of Law Emeritus; Director, Thomas Jefferson Center for the Protection of Free Expression

[Editor’s Note: When the Virginia Law Weekly made its debut in 1948, the left side of the front page featured a column entitled DICTA: Basic Aims of the Law and Role of Schools, written by Dean of the Law School, F.D.G. Ribble. Over the better part of the next 48 years, as well as for a brief period earlier this decade, the DICTA column served as a platform for students, faculty, and alumni to share insights and opinions on the law outside of the classroom. The Virginia Law Weekly is proud to present the return of Dicta, which will appear in the third issue of each month.]

When the University of Virginia Athletic Department announced in late August that signs would henceforth not be allowed at athletic events, an enthusiastic response from Cavalier sports fans was probably not anticipated. In fact the reaction has varied predictably, though most public comment has been unsympathetic. Central to such criticism has been a concern for free speech, with many critics insisting that Mr. Jefferson’s University should be less ready than its peers to stifle or curb expression at public events. Appraising that claim seems an appropriate and timely inquiry.

One relevant consideration is that such a policy is hardly unique among Virginia public universities that bring large crowds to their athletic facilities. Virginia Tech and James Madison have imposed similar bans for some years, and Virginia Commonwealth “reserves the right to remove any sign” at a sports event, while the smaller institutions seem to lack comparable policies. Although good company does not shape constitutional law, such parallels are worth noting.

Despite the absence of relevant case law, a court faced with a challenge to the recently announced sign ban would need to address several difficult issues. A pervasive question is how differently (if at all) speech at sporting events should be treated. While most fans assume they are free to vent their feelings as loudly or as visibly as they choose from the stands in any stadium or arena, that premise merits closer scrutiny. Several years ago the University of Maryland sought the guidance of the state’s Attorney General in seeking to combat embarrassing incidents of unusually crude and vulgar messages from the student section at men’s basketball games. Such advice eventually came from Annapolis, and strongly hinted that such a curb would pass muster under the First Amendment despite the Supreme Court’s insistence that vulgarity and profanity enjoyed constitutional protection. Wisely, Maryland administrators declined this invitation, and instead achieved greater civility through persuasion and example.

A wholly different constraint occasionally occurs at collegiate football games in the Midwest if the home crowd cheers so loudly that the visiting squad is unable to hear its quarterback’s signals. The crowd may be warned that if the noise level does not subside their team may forfeit a down when they regain the ball. And of course the speech of athletes and coaches is subject to many limits that would not survive First Amendment scrutiny in other contexts. Thus, in several possibly pertinent ways, expression at intercollegiate athletic events may not be quite comparable to other venues on or off campus.

Other factors would also help guide a judge in resolving challenges to a sign ban at athletic events. In the local context, the court would probably note with approval that the new UVA policy avoids one fatal flaw of its ad hoc precursor. Last fall an undergraduate student faced ejection from the stadium for waving a sign that called for the firing of the head football coach—at a time when messages lauding the coach (or advertising beverages, automobiles and banks, for that matter) would have evoked no official concern. The new policy, whatever else may be said about it, is clearly viewpoint neutral, and for that reason is clearly more congenial with free speech principles. In that respect it evokes an experience a decade or so ago at Ole Miss, where mounting concern about display of Confederate Battle flags at football games brought an inspired solution, after university officials recognized that targeting a specific message, symbol or logo would fail the First Amendment test. Instead, “sticks” were banned from the stadium, and fans soon discovered that waving the Stars and Bars becomes challenging without a rigid piece of wood or metal.

A judge reviewing the challenged “no sign” policy might then recognize a certain irony—that content and viewpoint neutral bans end up foreclosing substantially more speech than those that target only a particular message. The central question in such a case would eventually become the nature of the forum in which the issue arose, and the relationship between that venue and the challenged restriction. On that issue First Amendment scholars and university lawyers are certain to disagree—some insisting that an intercollegiate athletic event at a state university is about as public a forum as one will ever find, while others would concur with Maryland’s Attorney General that special curbs on speech in the stadium and arena are warranted because of unique concerns. Relevant case law could be cited in support of both views.

Those concerns, not surprisingly, vary from one institution to another. Tech’s sign ban reflects a commitment to ensure safety in the stands and fans’ ability to see the game; Maryland’s legal opinion recognized a university’s power to shield a “captive audience” from “offensive language [that] comes without warning,” while the new UVA policy was justified initially by a desire to “promote sportsmanship and a positive game day environment.” The fate of such a policy in a court challenge might in fact turn in part both on the stated rationale and on the institution’s experience leading to the adoption of such a ban.

Finally, the clarity of key terms, and provisions for the policy’s enforcement, may well shape the outcome of a constitutional challenge. Two decades ago the University of Virginia banned all “structures” on the Lawn at a time when “shanties” dotted the environs of the Rotunda as a symbol of protest against continued investment of endowment funds in companies doing business in South Africa. The policy was successfully challenged in federal court, largely because of its lack of precision. The policy was carefully recrafted, and in its new form passed muster both in the district court and the Fourth Circuit. The revised ban forbade various types of structures—including “chairs,” expressly omitting wheelchairs, though only “when occupied by a physically handicapped person.” That experience may offer valuable guidance for the current saga; how carefully “sign” and other key terms are defined, and how violations are to be sanctioned, surely merit close scrutiny.

Robert O’Neil, Director of the Thomas Jefferson Center for the Protection of Free Expression and an authority on the First Amendment, is a Professor of Law Emeritus and teaches Constitutional Law of Free Speech and the Press, and Church and State. He came to Virginia in 1985 to become the University of Virginia’s sixth president, a position he held until 1990. He has been a frequent contributor to DICTA during his time at the University.