A Tweet to Remember: Approving Signs in Razorback Stadium

The Athletic Director of the University of Arkansas tweeted[1] a message last week that created a small stir in the 24-hour sports news cycle.  It said simply, “All signs Students and Fans would like to display at FB games must be approved in advance. Call Julie Cain at (479) 575-3134 for approval.”

Reaction from fans and commentators was what you would expect it to be.  Indignant. Angry.  And a bit sarcastic.  Wasn’t this an abridgement of the fans’ freedom of speech?  What is this . . .1930s Germany? Or 2009 FedEx Field?

As a non-Razorback fan, my initial reaction was a bit more measured.  The Arkansas football program has gone through a scandalous summer,[2] so why create a potential problem with your fans when you don’t have to?  But then I thought about it again and my reaction changed.  What an incredibly smart tweet.[3]

In truth, the initial reaction of fans and commentators wasn’t too far off.  State-run universities are in a tight spot when it comes to regulating signs brought into their stadiums.[4]  The universities have an obvious interest in keeping out mean-spirited or obscene signs, but (as Arkansas fans suggested) the First Amendment restricts their ability to do so.  Cohen v. California, the 1971 case in which the Supreme Court held that the public display of a certain four-letter expletive could not be criminalized without a specific and compelling reason, and cases like it still provide a good bit of protection to, uhh, colorful language.

Does that mean we can all simply walk into state-operated stadiums with F-bombs on large placards?  Well, maybe.  The universities certainly have some good weapons in their arsenal to stop us from doing so.  Fighting words[5] and words that incite violence are not protected by the First Amendment.  Nor is obscenity (whatever that is).  And do not forget that children come to these college sporting events.  The university could always make a good argument that it has an interest in protecting children – who, after all, are a captive audience in these stadiums –  from sexually explicit, racist, or offensive speech.  But the issue is far from settled.  And anyone wanting to pay a few million dollars in attorney fees to fight a university over his or her really awesome ironic t-shirt might just come out on top.

So what is a university to do?  A few years ago my alma mater, the University of Virginia, tried a novel approach. Ban all signs.  At first it seemed like an incredibly smart move.  Virginia wasn’t banning a particular point of view (i.e. “Fire Al Groh”) rather, they were banning all points of view.  In the strange world of the First Amendment, that’s a much better plan, a much better ban.  More so, they weren’t banning all speech – only the written form of speech – fans could still chant “Fire Al Groh.” And finally, signs were only banned inside the stadium and during the game, a rather narrow time and place.  Thus, the U.Va. policy virtually erased the potential legal problems.  But it did not erase the practical ones.  The backlash by the university community was loud and continuous. The students even staged a memorable silent protest by simultaneously holding up blank pieces of paper around the stadium. Fans love them some signs.  Eventually U.Va. relented and the signs returned.

But back to Arkansas.  Anyone who reads the sports pages knows that Arkansas is probably not concerned with one of the random George Carlin-approved words appearing on a stadium sign.  No, they are more likely worried about Bobby Petrino, or rather, comments related thereto.  The saga of Mr. Petrino – motorcycle accident, young paramour, neck brace photos, lies – lends itself to stoking the creative juices of sign makers and pun enthusiasts everywhere, particularly from opposing fans coming to Arkansas.[6]  And thus the University found itself between a rock and a hard place: the First Amendment and distasteful Petrino signs.  They could not simply ban Petrino-related signs, nor did they want to take the dead end road followed by U.Va.

Arkansas had already taken all the typical steps. Like many other universities, they had adopted size restrictions on signs – to promote fan safety and avoid interfering with spectator views. Perfectly legitimate.  They had also adopted a well-crafted written policy that emphasizes all of the acceptable First Amendment reasons for banning signs.  The problem is that most signs do not actually incite violence, nor do they rise to the level of obscenity.  The sign policies speak loudly but their effectiveness is an open question.  So what is Arkansas to do?

This is where the tweet[7] comes in.  Arkansas decided to create a seemingly minor hurdle for sign makers.  You must have your sign pre-approved by Julie Cain.  But – and this is what I find so imaginative – they are betting that this hurdle acts as a sizeable deterrent.  Why? You cannot just make a sign and go to the stadium. Instead, you have to make your sign in advance; you have to call Julie Cain[8]; you may have to drive down to her office for approval; and, for all you know, that effort might leave you embarrassed and sign-less.

It’s a smart strategy.  (1) Arkansas can throw away your sign at the door of the stadium not because of its content, no way, but because you did not go through the proper process.  (2) Arkansas has (hopefully) deterred the worst of the signs because (a) most fans will not want to go to the trouble of approval, (b) WPS and other pro-Arkansas signs will pass the test with flying colors, and (c) most fans are not First Amendment scholars who would realize that their punny Petrino sign might very well be protected by the First Amendment.  And (3) most importantly, Arkansas accomplishes all of this in a little tweet without running afoul of the First Amendment.[9]

Will the new policy work?  Will other schools follow it? Am I reading too much into this tweet[10]?  In short: I don’t know, I don’t know, and perhaps.  But I am certainly going to be watching the fans in Donald M. Reynolds Razorback Stadium with more interest this season.

[1] Every time I type that word I feel foolish.  I refuse to sign up for Twitter simply because I do not want to have to “tweet” something.

[2] To refresh your memory: Head football coach Bobby Petrino; young mistress; money; lies; firings; tears.

[3] There it is again.  Can’t we all get together and change this term to something with a bit more edge?

[4] As any first-year law student can tell you the First Amendment only applies to government restrictions on speech so state-run universities have different exposures than private universities.

[5] In Constitutional parlance, words that tend to incite an immediate breach of the peace are considered “fighting words.”

[6] As for Petrino-related signs in other stadiums . . . my guess is that we might see more than a few creative signs across the SEC.

[7] I guess I’m getting used to it now.

[8] Poor Julie Cain.  I sincerely hope they notified her before tweeting her name and number to the entire Razorback nation.

[9] Okay, maybe the policy (to the extent it is one) isn’t completely bullet proof.  As a colleague pointed out, “If you are right, couldn’t you argue that this policy is a prior restraint that seeks to deter free speech?”  Hmmm, you could certainly make that argument, whether you’d win is some research for another day.

[10] I take back everything I said.  I love Tweeting!  The word too.

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