- If You Build It, They Will SpeakPublic Stadiums, Public Forums, and Free Speech
Root, Root, Root
Baseball and the freedom of speech are American icons, the latter a central element of the former.1 During the seventh-inning stretch fans reiterate the ancient injunction to "root, root, root for the home team."2 The scoreboard, the organist, and the players encourage fans to make noise and to actively participate in the game. Somewhere in the crowd is a man in a rainbow wig carrying a "John 3:16" sign.3 "The Wave," in which fans in successive sections of the park stand and raise their arms in unison, expresses some message, although I do not understand what that is or why anyone feels a need to express it.4
Fans engage in what I term "cheering speech."5 Cheering speech is about teams, players, coaches, officials, team executives, or other fans. It supports, opposes, cheers, jeers, praises, criticizes, heckles, and even taunts. It can be in support of one's own players and team, be against the opposing players and team (a distinct message), or even be critical of one's own players and team. It can be about events on the field or about baseball in a broader social context. Cheering speech can be oral, symbolic, or written on signs, banners, clothing, and body parts. It can be positive, negative, and everything in between. It can be in good taste or bad, clean or profane, provocative and clever or otherwise. And it will be loud.
First Amendment protection for cheering speech comes from two directions. First, speech about baseball is important in its own right. Baseball is a societal force, a symbol of American society, psyche, and aspirations.6 Baseball is American culture—low culture perhaps, but culture nonetheless, with pervasive and meaningful appeal.7 As the federal grand jury investigating the 1919 Black Sox Scandal stated, baseball is "an American institution, having its place prominently and significantly in the life of the people."8 Cheering speech is protected as expression that builds a culture "on all areas of human learning and knowledge."9 [End Page 15]
From the other direction cheering speech has political content; it often is pure political speech on matters of public import made in the particularized context of a baseball game. Political speech of criticizing the U.S. president becomes cheering speech if done when the president appears at the ballpark to throw out the first pitch. Cheering speech is protected for its connection to and role in the larger public discourse.
If You Build It
Ballparks are part of the mythology of baseball; these are the "green cathedrals" in which the religion of baseball is observed, with such timeless nicknames as "Friendly Confines" and "the House That Ruth Built."10 Major League Baseball franchises have entwined themselves in the political process through public financing of the places in which games are played.11 From the late 1980s until 2004 no fewer than twenty ballparks were either built or renovated exclusively or partially for Major League Baseball teams (eleven between 1999 and 2004), with approximately two-thirds of the funds from public coffers.12 The impetus for this massive public undertaking often is an existing team's threat to leave the city; other times it is an attempt by a city to attract a new or existing team.13
Major League Baseball insists that essential to fielding a competitive team is a new, retro, nostalgic, postmodern, baseball-only park located in a downtown area and with seats close to the field.14 Teams demand the additional revenues the new park creates to be profitable off the field and to have the money to compete for high-priced superstar players who will enable the team to be successful on the field.15 The result is a public-private partnership in stadium financing, with the public putting a large amount of money up front and the team garnering "nontraditional revenues" generated by the special features of modern ballparks.16 The critical piece of the financial circle is a favorable lease agreement under which the team retains a substantial share (if not...