Chip Babcock Communiqué

Chip Babcock Communiqué Free Speech and Baseball

All our stuff may be made in China, the help desk may have been outsourced overseas, and the Euro may be outpacing the dollar, but there are two things that nobody in the world does better than we do: Free speech and baseball.

The First Amendment, which prohibits Congress from making any law which abridges "the freedom of speech" was ratified in 1791, the same year that baseball was being called a nuisance in Massachusetts, where town elders in Pittsfield prohibited the game; regulating it for "the Preservation of the Windows in the New Meeting House in Said Town." Of course, you'll get some argument about who invented the modern game of baseball and when. Some say it was Alexander Joy Cartwright in 1845, when he and some of his New York friends met between Third and Fourth Avenues at a place called Murray Hill. Cartwright had with him a carefully crafted diagram. It called for flat bases set 90 feet apart in a square set in the shape of a diamond. Cartwright's rules provided for nine players per side with three outfielders and a man placed between second and third (where most of the balls were hit). The plan allowed three outs before the teams exchanged places in the field. Thus, some say, was founded the game we know today.

But there are those who cling to the notion that the modern game was invented in 1839 by Abner Doubleday in Elihu Phinney's cow pasture in Cooperstown, New York, which is now the site of the Baseball Hall of Fame and the quaint and picturesque Doubleday Field. It was at the Hall of Fame, years later in 2003, where the erratic but immensely talented pitcher Ebby Calvin "Nuke" LaLoosh was called upon to offer his remarks about the greatest baseball movie of all time, Bull Durham. The speech never happened. The President of the Hall of Fame cancelled the event fearing that Nuke might show up as his alter ego, Tim Robbins (the actor who plays Nuke in the movie), who, it was feared, would use the occasion to denounce the war in Iraq. Nuke, of course, could be relied upon to say the things that great ballplayers say like, "I'm just happy to be here," "I'll do anything I can to help the club win," and, the classic, "I'm putting my pants on one leg at a time." No nukes for Nuke. Robbins, by contrast, was feared as a dangerous radical.

Cancellation of the speech caused an uproar, the Hall of Fame apologized, Major League Baseball distanced itself from the incident, and Robbins got invited to speak before the National Press Club where he said, "Let us celebrate this grand and glorious experiment that has survived for 227 years. To do so we must honor and fight vigilantly for the things that unite us—like freedom, the First Amendment and, yes, baseball." It may have been Nuke who wrote this reply to the Hall of Fame, "Long live democracy, free speech, and the '69 Mets; all improbable glorious miracles that I have always believed in."

Sometimes, just watching a game can raise First Amendment questions. Last year, Louisville Courier-Journal sportswriter Brian Bennett was covering an NCAA super-regional baseball game at the University of Louisville when he was evicted from the press box in the bottom of the fifth inning for violating the NCAA policy of blogging from a collegiate championship event. The paper's editor, Bennie Ivory, was outraged. "It's clearly a First Amendment issue," he said. "This is part of the evolution of how we present the news to our readers. It's what we do." Both the NCAA and, perhaps, Mr. Ivory forgot that before the internet there was the telegraph. In city and village squares all across America, people congregated to see the play-by-play, pitch-by-pitch results of their favorite major league teams, as relayed by the telegraph, posted on a large outdoor billboard visible to all. Blogging by another name?

In 1925, the First Amendment started to hit its stride when, in Gitlow v. New York, 268 U.S. 652, 666 (1925), the U. S. Supreme Court declared free speech a "fundamental and personal right" that could not be impaired by the states. In the 1920s baseball took off as well; Yankee Stadium opened in 1923 and the game featured stars such as Babe Ruth, Lou Gehrig, Ty Cobb, Rogers Hornsby, Pie Traynor, and Grover Cleveland Alexander. The Washington Senators actually won a World Series (1924) and Wrigley Field fans (1922) witnessed the highest scoring game in baseball history, a 26-23 Cubs win over the Phillies. The bleachers (and stands generally) were a free speech zone where the fans could hurl defamatory insults at opposing ball players and could do annoying things with impunity. The legendary Brooklyn fan, Hilda Chester, for example, liked to patrol Ebbets Field clanging loud cow bells whenever her beloved Dodgers did something right or, for that matter, wrong. Hilda was always a thorn in my grandfather's side. A season ticket holder, he found her incessant clanging a bother and often told her loudly to "SHUT UP!" She quickly labeled him "the old grouch," although Hilda referred to my 6'6" father as "Big Guy" and my mother as "Beautiful." Still, my grandfather was without legal recourse as are the ballplayers despite being called "bums" and worse.

Sometimes baseball paraphernalia raises First Amendment issues. In 1994, a middle school principal began to confiscate baseball caps from his students, prompting the New York Civil Liberties Union to write the New York Times that "what a student wears to school is considered to be symbolic or expressive speech...the Bill of Rights does not stop at the schoolhouse gate" (quoting a US Supreme Court case). Query the result in Morse v. Frederick, 127 S. Ct. 2618 (2007), if "Bong Hits 4 Jesus" had been on a baseball cap worn by a student fan who could clearly articulate the political statement the message on the hat was making. 7-2 in favor of the First Amendment, I'm betting. Of course, wearing a Yankees hat in a Boston school can (and should) be banned. The incitement doctrine would be clear authority to enforce the prohibition.

Speaking of Yankee fans, it is black letter First Amendment law that the freedom to speak carries with it the right not to speak. Thus, when J.D. Drew hit a two run homer for the American League this year at the All-Star game in the Bronx, Yankee fans sat on their hands even though the Red Sox outfielder was playing for their team. As I was listening to the game on internet radio in a foreign country, it was also clear to me that the Yankee fans were fully aware of their freedom of speech rights when Jonathan Papelbon of the Red Sox gave up a run to the Nationals in the 8th inning. BOOOOO!!!!!!

Probably the most famous baseball case decided by the US Supreme Court (Flood v. Kuhn, 407 U.S. 258 (1972)) did not involve the First Amendment but demonstrated, without question, how deeply ingrained the game is in all aspects of our lives. The opinion was authored by Justice Harry Blackmun who, early in his tenure on the court, was referred to as one of the Minnesota Twins because of his propensity to vote with his fellow Minnesotan, Warren Burger. In any event, Justice Blackmun worked mightily on the Flood opinion, which began with a section saluting the game of baseball and including a list of 88 "celebrated...names" from the history of the game. The list had grown from 74 names in the first draft, as other justices lobbied to have their favorite players included. Justice Potter Stewart jokingly said he would join the opinion if a member of the Cincinnati Reds was included. The second draft included the name of a Reds pitcher, Eppa Rixey.

The most recent intersection of the First Amendment and baseball came last year with the Eighth Circuit opinion in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), a decision the Supreme Court declined to review last month. C.B.C. sought to use the names of and information about major league players, without license, for the purpose of running baseball fantasy leagues. Major League Baseball and the Players' Association objected, claiming the use of the names and information violated their right of publicity. The Eighth Circuit held that state law rights of publicity must be balanced against First Amendment considerations and that the First Amendment won out. "Major league baseball is," the court said, "followed by millions of people across this country on a daily basis…The public has an enduring fascination in the records set by former players and in memorable moments from previous games...The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today's performances…(this) therefore, is a form of expression due substantial constitutional protection."

I first appreciated the value of baseball to the social fabric of our country during my college years when the Vietnam war was raging. My father, a veteran of World War II, could not speak with me about a political issue without flying into a rage because of my opposite views. But we always had baseball to talk about; a history and common bond that broke down the barriers of our contrary political opinions.

It would be nice to repatriate the help desk, but as long as we have free speech and baseball—we'll be OK.

— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.