You Can't Sit with Us: Limiting Free Speech in Sports Arenas and How the Tampa Bay Lightning Took Home Ice Advantage Too Far

Volume 24 Issue 1 Article 4

1-1-2017

You Can't Sit with Us: Limiting Free Speech in Sports Arenas and You Can't Sit with Us: Limiting Free Speech in Sports Arenas and

How the Tampa Bay Lightning Took Home Ice Advantage Too Far How the Tampa Bay Lightning Took Home Ice Advantage Too Far

Kaitlin Shire

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Kaitlin Shire,

You Can't Sit with Us: Limiting Free Speech in Sports Arenas and How the Tampa Bay

Lightning Took Home Ice Advantage Too Far

, 24 Jeffrey S. Moorad Sports L.J. 81 (2017).

Available at: https://digitalcommons.law.villanova.edu/mslj/vol24/iss1/4

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YOU CAN’T SIT WITH US:

LIMITING FREE SPEECH IN

SPORTS ARENAS AND HOW THE TAMPA BAY

LIGHTNING TOOK HOME ICE

ADVANTAGE TOO FAR

“[A]ny time you get in front of that home fan base, there’s an edge. . . .

Statistics show it but you can sense it in the field, you can sense it as you

compete. It’s an advantage every team wants to have.”

I. I

NTRODUCTION

Professional sports entail a variety of speech.

Every season,

thousands of fans flood arenas throughout the nation to cheer for

their favorite teams.

Teams encourage such expression at their

arenas through the incorporation of cheerleaders, interactive score-

boards, and loud music.

But what happens when teams only invite

support from home fans, or worse, suppress the support of away

fans?

In Amalie Arena, home of the Tampa Bay Lightning (“Light-

ning”), only supporters are welcome to show their support.

Last

spring, the Lightning made the National Hockey League playoffs.

The Lightning banned visiting team apparel in the club sections,

EAN

IRLS

(Paramount Pictures 2004).

2. See Phil Rogers, Winning Series Home-Field Advantage Is Important,

MLB.

COM

(July 15, 2014), http://m.mlb.com/news/article/84750574/phil-rogers-all-star-

game-victory-brings-important-edge-to-world-series [https://perma.cc/UG7W-

7V6X] (quoting St. Louis Cardinals manager, Mike Matheny).

3. See Howard M. Wasserman, Fans, Free Expression, and the Wide World of Sports,

U. P

ITT

. L. R

525, 525–26 (2006) (noting that people talk about professional

sports and use professional sports as forums for speech).

4. See id. at 526 (determining fans’ cheers are expected part of game).

5. See id. Due to such forms of encouragement, fans become participants in

the game and their cheers can help decide games. See id.

6. See Dan Carson, Tampa Bay Lightning Ban on Visiting Team Apparel Sparks

Concern in Chicago,

LEACHER

. (

last updated June 4, 2015), http://bleacherre

port.com/articles/2485185-tampa-bay-lightning-ban-on-visiting-team-apparel-

sparks-concern-in-chicago [https://perma.cc/4U9C-2KNZ] (noting that in refer-

ence to ban and Chicago Fans, Tampa Bay Mayor said, “you are not coming into

my house”).

7. See id. The Lightning made it all the way to the Stanley Cup Finals but

ultimately lost in the championship series to the Chicago Blackhawks. See also Joe

Smith, Lightning Shut Out as Blackhawks Win Stanley Cup,

AMPA

IMES

(June 15,

2015, 11:03 PM), http://www.tampabay.com/sports/hockey/lightning/lightning-

shut-out-as-blackhawks-win-stanley-cup/2233847 [https://perma.cc/2VS5-7YJJ]

(highlighting Lightning’s 2015 Stanley Cup Finals series).

(81)

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taking home ice advantage to a whole new level.

If the Lightning

was simply a private entity, this ban would amount to nothing more

than bad sportsmanship.

However, while the United States Consti-

tution does not normally apply to private entities, it will if it the

entity is functioning as a state actor.

Courts have found that pri-

vate entities receiving government funds can be state actors.

Amalie Arena, the Lightning’s home ice arena, was constructed,

and is currently maintained, using public funds; therefore, the

Lightning’s restrictive policy may be subject to a First Amendment

claim.

This Comment examines the constitutional issues that arise

when professional sports teams attempt to suppress fan speech in

their arenas. Part II provides a background on the importance of

fan speech in professional sports and discusses what compels a

8. See Carson, supra note 6 (surmising that $600 ticket does not include being

able to wear jersey of choice). Upon purchasing tickets, Chase Club and Lexus

Lounge Ticket Holders were informed: “Please note that for all 2015 NHL Playoff

Games at Amalie Arena only Tampa Bay Lightning team apparel (or neutral) will

be permitted in these club and adjoining seat areas. Fans wearing visiting team

apparel will be asked to remove them while in these areas.” Kavitha A. Davidson,

Tampa Bay’s Hockey Dress Code Insults Lightning Fans,

LOOMBERG

IEW

(

Jun. 1, 2015,

3:54 PM), https://www.bloomberg.com/view/articles/2015-06-01/tampa-bay-s-

hockey-dress-code-insults-lightning-fans [https://perma.cc/Y2LV-V9MW] (discuss-

ing visitor apparel ban); accord Paul Munsey & Cory Suppes, Amalie Arena,

ALLPARKS

COM

, http://hockey.ballparks.com/NHL/TampaBayLightning/in-

dex.htm [https://perma.cc/R9ZX-MDYD] (last visited March 7, 2016) (reporting

there are approximately 3,300 club seats, out of 19,500 total seats, in Amalie

Arena).

9. See Shannon Ryan & Phil Thompson, Lightning Impose Apparel, Ticket Restric-

tions on Blackhawks Fans,

HICAGO

RIB

(June 15, 2015, 4:31 PM), http://

www.chicagotribune.com/sports/hockey/blackhawks/ct-lightning-fan-restrictions-

spt-0603-20150602-story.html [https://perma.cc/C66W-VJRJ] (discussing how

other professional teams handle visiting fans). Many professional teams have poli-

cies that instead welcome fans to their stadiums. See id. For example, Major

League Soccer requires all of its teams to reserve tickets for the opposing team’s

fans. See id. Further, some teams even reserve entire parking lot sections so visit-

ing fans have spots to park and tailgate. See id.

10. See Christopher J. McKinny, Comment, Professional Sports Leagues and the

First Amendment: A Closed Marketplace, 13

ARQ

. S

PORTS

L. R

223, 228 (2003)

(noting Constitution only applies to federal government and states).

11. For a discussion of courts’ state actor analyses, see infra notes 64–93 and

accompanying text.

12. See Munsey & Suppes, supra note 8 (providing facts and figures on Amalie

Arena). It cost $139 million to construct Amalie Arena. See id. 124 million dollars

of that came from state sales tax bonds with the rest coming from private bonds,

city tourist tax bonds, city parking bonds, county ticket surcharges and city ticket

surcharges. See id. Amalie Arena’s landlord is Tampa Sports Authority, a public

agency created under Florida law. See Tampa Sports Authority,

AMPA

PORTS

U-

THORITY

http://www.tampasportsauthority.com/about-tsa [https://perma.cc/

7MK5-GKE8] (last visited March 7, 2016) (noting agency created as public agency

under Florida law in 1965).

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team, like the Lightning, to promote home fan speech while curb-

ing opposing fan speech.

Part III discusses the relevant constitu-

tional standards and examines whether the Free Speech Clause

applies to privately owned teams playing in publicly funded are-

nas.

Part IV argues that the Lightning’s policy violates visiting

fans’ First Amendment rights.

Finally, Part V analyzes the detri-

mental effect such a policy can have on professional sports and rec-

ommends that the NHL and other professional sports leagues

address the matter to protect the future of fan expression in the

game.

II. S

PECTATOR

PEECH AND

OME

DVANTAGE

Most athletes, fans, and officials believe that home teams have

an advantage over visiting teams.

Such an advantage is not merely

a myth, as teams do win more games at home.

For example, dur-

ing the 2014–2015 season, the Lightning won seventy-eight percent

of their home games at Amalie Arena but only forty-three percent

of their away games.

Researchers have tried to pinpoint the rea-

13. For a discussion of a fan’s role in home advantage, see infra notes 17–51

and accompanying text.

14. For a discussion of state actors and public forums, see infra notes 52–129

and accompanying text.

15. For a discussion of how the Lightning would fair against a First Amend-

ment claim, see infra notes 133–238 and accompanying text.

16. For a discussion of how the Lightning’s policy will affect the future of fan

expression and fairness in professional sports, see infra notes 240–248 and accom-

panying text.

17. See K. Durham, Does the Phenomena of Home Advantage Really Exist?,

NIV

ICH

, http://www-personal.umich.edu/~kdurham/ [https://perma.cc/8N62-

NXDG] (last visited March 6, 2016) (noting that in every professional sport, teams

with “best records are rewarded with more home playoff games than their

opponent”).

18. See John Bois, Home Advantage in Sports: A Scientific Study of How Much it

Affects Winning,

SB N

ATION

(Jan. 19, 2011, 10:39 AM), http://www.sbnation.com/

2011/1/19/1940438/home-field-advantage-sports-stats-data [https://perma.cc/

Y9BY-Z6EX] (concluding that “home . . . advantage is real”).

19. See Craig Bennett, Lightning vs. Blackhawks: Records and Stanley Cup Preview,

EAVY

(June 1, 2015, 10:35 AM), http://heavy.com/sports/2015/05/lightning-vs-

blackhawks-season-records-stats-stanley-cup-final-preview-head-to-head/ (reporting

Lightning record was 32-8-1 at home and 18–16–7 on road). If an NHL team

played all of its games at home it would, on average, win 5.22% more games each

season. See Bois, supra note 18 (analyzing average number of games NHL teams

won at home in 2015). Other professional sports leagues have also witnessed an

advantage at home. See Rogers, supra note 2 (discussing Major League Baseball

home advantage). For example, teams with a home advantage have won twenty-

three of the past twenty-eight World Series. See id. (concluding statistic shows why

All-Star Game victor is rewarded with home advantage in World Series).

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son for the advantage.

Theories have cited crowd support

amongst the reasons why teams tend to perform better at home.

In fact, in defending the Lightning’s policy, the organization’s Ex-

ecutive Vice President for Communications, Bill Wickett, echoed

this idea, stating that the team’s goal was to “create as much of a

hometown environment for the Lightning players and season-ticket

holders as we can.”

Thus, the team sought to block opposing

fans’ access to the game while filling the arena with Lightning

fans.

The Lightning’s goal was not groundless; research has shown

that fans can directly influence a game’s outcome.

For instance,

studies indicate that the greater the number of fans in a stadium,

the greater the home team advantage.

The Lightning’s perform-

ance over the past several seasons supports this finding.

2008–2009, one of the Lightning’s lowest scoring seasons on re-

cord, the team only averaged approximately 16,500 fans per

20. For a discussion of such studies, see infra notes 25–41 and accompanying

text.

21. See Stephen J. Dubner, “Football Freakonomics”: How Advantageous Is Home-

Field Advantage? And Why?,

REAKONOMICS

(Dec. 11, 2011, 9:05 AM), http://freako-

nomics.com/2011/12/18/football-freakonomics-how-advantageous-is-home-field-

advantage-and-why/ [https://perma.cc/VV2Y-B98W] (studying how and why

teams have home advantage).

22. Tom Spousta, Tampa Bay Takes Extreme Measures to Ensure Home-Ice Advan-

tage,

N.Y. T

IMES

(May 20, 2015), http://www.nytimes.com/2015/05/21/sports/

hockey/tampa-bay-lightning-limit-wearing-of-opponents-colors.html?_r=0 (inter-

viewing Wickett).

23. See id. (explaining reason for team’s policy). Wickett explained, “[w]e

wanted to do anything we could to make sure the building is blue and fans inside

are Lightning fans.” Id. (reasoning that policy may be unpopular with visiting fans,

but Lightning fans come first). See also Davidson, supra note 8 (quoting and inter-

preting Wickett interview).

24. See generally Dan Shaw, Crowd and the Home Advantage,

ELIEVE

ERFORM

http://believeperform.com/education/crowd-and-the-home-advantage/ [https:/

/perma.cc/UV27-7R7S] (last visited Mar. 4, 2016) (citing psychological studies

that have specifically focused on spectators’ effect on home advantage).

25. See id. (noting that, for instance, research has found that when baseball

stadium is at greater than forty percent capacity, home team’s advantage increases

to fifty-seven percent compared to forty-eight percent in stadium at less than

twenty percent capacity).

26. See NHL Attendance Report, ESPN, http://espn.go.com/nhl/attendance

[https://perma.cc/HSY4-AZAL] (last visited June 14, 2016) (providing attendance

report, which indicated that Lightning’s record and fan attendance has continued

to improve within past few seasons).

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game.

In comparison, in the 2014–2015 season, the team aver-

aged 19,000 fans a game and reached the Stanley Cup finals.

Fans, therefore, can directly influence athletic performance.

Their presence and support “have an energizing effect” on an ath-

lete.

While such energy may be detrimental to an athlete in

sports where fine motor skills are required, such as sports like golf

or gymnastics, it may actually improve athletic performance in

sports that involve team play and endurance, such as ice hockey.

An athlete can use the energy emanating from fans to push himself

or herself harder than normal.

Positive fan support in the form

of applause and cheers can also improve athletic performance.

For instance, when fans are supportive, home teams score more

points and have fewer violations.

On the other hand, visiting

teams will commit more infractions in response to the home fans’

27. NHL Attendance Report - 2008-09, ESPN, http://www.espn.com/nhl/atten

dance/_/year/2009 [https://perma.cc/A45J-BN8U] (showing one of lowest atten-

dances on record); see also NHL Standings - 2009-09, ESPN, http://www.espn.com/

nhl/standings/_/year/2009 [https://perma.cc/U8DD-PWVY] (last visited Sept.

19, 2016) (reporting Lightning only scored a total of 66 points in the 2008–2009

season).

28. NHL Attendance Report - 2014-15, ESPN, http://www.espn.com/nhl/atten

dance/_/year/2015 [https://perma.cc/22F3-SZSH] (showing one of highest at-

tendances on record); see also NHL Standings - 2014-15, ESPN, http://

www.espn.com/nhl/standings/_/year/2015 [https://perma.cc/WAJ7-8AHS] (last

visited Sept. 19, 2016) (reporting Lighting went 50-24-8 in its 2014–2015 season).

29. See Hilary E. MacGregor, For Athletes, the Crowd’s Roar Is Double-Edged,

IMES

(Aug. 23, 2004), http://articles.latimes.com/2004/aug/23/health/he-

crowds23 [https://perma.cc/U4YH-QBLX] (noting crowds can get athlete’s

“adrenaline pumping”).

30. Id. (stating sports psychologists have dubbed effect as “social facilitation”).

31. See id. (emphasizing fans can be particularly helpful in sports where events

are long and athletes tend to get tired).

32. See id. (comparing crowd energy to food, but also acknowledging athlete

can receive so much energy from fans that he or she cannot control body and

makes mistakes).

33. See Durham, supra note 17 (explaining athletes’ interpretations of fans’

feelings and thoughts can influence their performance). See also Shaw, supra note

24 (noting home teams generally commit more infractions when crowd is not

positive).

34. See Shaw, supra note 24 (citing Donald L. Greer, Spectator Booing and the

Home Advantage: A Study of Social Influence in Basketball Arena, 46

. P

SYCHOL

. Q.

252 (1983)) (finding during normal crowd behavior, home team performed better

and when crowd grew especially hostile towards away team, home team’s “superior-

ity” grew even greater).

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cheering.

Away athletes generally receive negative feedback,

which can impair their performance.

The impact of fans is not limited to athletes though—it can

also influence game officials.

A crowd can influence an official to

“subconsciously favo[r] the home team.”

For instance, officials

may favor the home team when the home team is losing in re-

sponse to the whims of home fans.

Additionally, a loud crowd

may cause an official to make fewer calls that penalize home play-

ers.

It is not only the volume of the home fans’ cheers that influ-

ence officials, but also the pro-home message they are projecting, as

home bias lessens when the number of visiting fans and, conse-

quently, pro-visiting messages increase.

The Lightning may have been inclined to protect this great ad-

vantage because, as sports analysts have surmised, home advantage

is actually dwindling across all sports.

One explanation for this

modern trend is lower noise levels.

With the creation of bigger

stadiums, cheers from fans are simply not as loud or ominous as

35. See id. (citing Joel Thirer & Mark S. Rampey, Effects of Abusive Spectators’

Behavior on Performance of Home and Visiting Intercollegiate Basketball Teams, 48

ERCEP-

TUAL AND

OTOR

KILLS

1047 (1979)) (noting cheering constitutes normal crowd

behavior and when fans disengage from this normal behavior, home team is

affected).

36. See Durham, supra note 17 (citing R.B. Zajonc, Social Facilitation, 149

CI-

ENCE

269,

269–74 (1965)) (assuming that home crowd does not cheer visiting

team).

37. See id. (concluding this provides evidence for social forces having effect on

individual’s decision-making).

38. Shaw, supra note 24 (citing A.M. Nevill and R.L. Holder, Home Advantage

in Sport: An Overview of Studies on the Advantage of Playing at Home, 28

PORTS

221 (1999)) (admitting that while officials may favor home team, they do not pe-

nalize away team more).

39. See id. (citing Thomas J. Dohmen, The Influence of Social Forces: Evidence from

the Behavior of Football Referees, 46

CON

. I

NQUIRY

411 (2008)) (determining when

home team is losing, crowds have greater than ever interest in decisions affecting

their team).

40. See id. (citing A.M. Nevill, N.J. Balmer & A. Mark Williams, The Influence of

Crowd Noise and Experience upon Refereeing Decisions in Football, 3

SYCHOL

PORT

AND

XERCISE

261 (2002)). The study found that soccer referees called 15.5%

“fewer fouls against the home team when [crowd noise] was present.” Id. (finding

advantage disappears when crowd is quiet).

41. See id. (citing Dohmen, supra note 39) (concluding this is further support

on effect of social forces on officials’ decisions).

42. See Tom Haberstroh, Home-Court Advantage? Not So Much,

ESPN

(Jan. 28,

2015), http://espn.go.com/nba/story/_/id/12241619/home-court-advantage-de

cline [https://perma.cc/S75V-L7EZ] (concluding home court advantage “not . . .

as valuable as it once was”).

43. See Home-Ice Edge Vanishes from Playoffs,

PORTS

(

Apr. 11, 2012, 1:00

AM), http://www.foxsports.com/nhl/story/playoff-hockey-home-ice-advantage-

long-gone-041112 [https://perma.cc/RDD6-UE7Y] (citing dwindling advantage in

ice hockey).

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they are in smaller stadiums.

Additionally, with the popularity of

social media, fans are more focused on their phones than on the

games, further muting fan cheers.

These lower noise levels affect

both athletic performance and fan influence on referees.

Specifi-

cally, in the NHL, referees are now also less susceptible to fan intim-

idation and influence due to the NHL’s recent “crackdown” on

referee performance.

Due to the great influence fans can hold over players, officials,

and games, the Lightning was indeed keen to bolster its home ad-

vantage.

However, the Lightning’s policy is ultimately detrimen-

tal to the game and sports in general.

From a sportsmanship

standpoint, if teams restrict fans’ ability to cheer for their own

teams, then the fairness of the game is in great jeopardy.

Further,

from a legal standpoint, the policy’s infringement on fans’ constitu-

tional rights, discussed below, raises even more serious concerns.

III. P

UBLICLY

UNDED

RENAS AND THE

IRST

MENDMENT

While it is clear that the Tampa Bay Lightning restricted visit-

ing fans’ speech by banning all visiting team apparel in the club

section, it is not as clear whether the team, in doing so, violated the

fans’ First Amendment right to speech.

Because the Lightning is

a privately owned team, it is not facially evident that it is even sub-

ject to a Free Speech claim.

The Constitution does not protect

44. See id. (determining that while arenas can now fit more fans, they are so

large that the fan’s cheers “dissipate into the higher roofs”). Amalie Arena is the

seventh largest NHL arena in terms of seating capacity. See NHL Arenas,

TAT-

OCKEY

NET

, http://statshockey.homestead.com/info/nhlarenas.html (last up-

dated Jan. 23, 2016) (noting Amalie Arena sits 19,204 spectators).

45. See Haberstroh, supra note 42 (declaring Facebook and players are vying

for fans’ attention and Facebook is winning).

46. For a discussion of crowd influence over officiating, see supra notes 37–41

and accompanying text.

47. See Home-Ice Edge Vanishes from Playoffs, supra note 43 (noting now every

play is on computer and referees are more intimidated by their supervisors than

crowd).

48. For a discussion of the Tampa Bay ban on visiting team jerseys, see supra

notes 6–8 and accompanying text.

49. For a discussion of fan influence over players, officials, and game out-

come, see supra notes 17–41 and accompanying text.

50. For a discussion of how fans can provide teams an advantage based on the

fans’ presence and support, see supra notes 17–41 and accompanying text.

51. For a discussion of the constitutional implications of the Lightning’s pol-

icy, see infra notes 133–239 and accompanying text.

52. See

U.S. C

ONST

. amend. I (“Congress shall make no law . . . abridging the

freedom of speech.”).

53. See Lightning Ownership, Executive, and Front Office Team,

AMPA

IGHT-

NING

, https://www.nhl.com/lightning/team/front-office [https://perma.cc/

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citizens from the actions of private entities.

However, the Consti-

tution will apply if the private entity is held as a state actor.

There-

fore, the Lightning may be subject to a claim if it meets this

standard.

Section A discusses and applies the tests courts have

traditionally used to determine whether a private entity is working

as a state actor.

Given the close financial relationship between

the city of Tampa Bay and the Lightning, it is almost certain that

the Lightning is a state actor.

Even if the state actor standard is met, courts also require that

the area where the speech is being restricted (here, the Arena) is a

forum open to speech.

Section B discusses the forums that the

Supreme Court has determined are subject to a First Amendment

claim.

Amalie Arena fulfills the forum requirement because it is a

forum that has been opened for fans to watch and cheer on their

teams.

A. The Tampa Bay Lightning Is a State Actor

While the Tampa Bay Lightning is privately owned, its home

venue, Amalie Arena, was built using both private and public fund-

ing.

Because of the public aspect, this funding model warrants an

S4GD-5MSP] (last visited Feb. 28, 2016) (reporting Jeff Vinik, a private owner,

currently owns Lightning); see also Nick DeSiato, Silencing the Crowd: Regulating Free

Speech in Professional Sports Facilities, 20

ARQ

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411, 413–14 (2010)

(noting all but of one America’s professional teams are privately owned).

54. See DeSiato, supra note 53, at 416 (noting private entity must be deemed

state actor to fall under constitutional scrutiny); see also McKinny, supra note 10, at

228 (noting that while Constitution was only intended to apply to Federal Govern-

ment, Fourteenth Amendment extended it to states and consequently to state

actors).

55. See DeSiato, supra note 53, at 416–17 (noting some state constitutions pro-

vide for speech protection against private entities, meaning state actor require-

ment would not be needed).

56. For a discussion of state actor analysis, see infra notes 62–109 and accom-

panying text.

57. For a discussion of state actor analysis, see infra notes 62–109 and accom-

panying text.

58. For a discussion of the public funding used to construct and maintain

Amalie Arena, see infra notes 79–81 and accompanying text.

59. See DeSiato, supra note 53, at 422 (emphasizing forum analysis is critical in

determining whether team is subject to Constitution).

60. For a discussion of public forums, see infra notes 111–137 and accompa-

nying text.

61. For a discussion of designated public forums, see infra notes 116–119 and

accompanying text.

62. For a discussion of Amalie Arena’s funding, see supra note 12 and accom-

panying text.

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analysis of the state action element.

Courts have traditionally

used three tests to determine the presence of state action: “[(1)]

symbiotic relationship, [(2)] entwinement, and [(3)] public func-

tion.”

Because no one test has prevailed over the others, this

Comment will apply each test to Amalie Arena.

1. Symbiotic Relationship Test

The United States Supreme Court has held that when a public

and private entity confer mutual benefits, the private entity be-

comes a state actor under the “symbiotic relationship test.”

Burton v. Wilmington Parking Authority, a government parking au-

thority leased space in a parking garage to a private restaurant.

The restaurant refused entry to black patrons, sparking an Equal

Protection claim.

The Court found state action because both en-

tities benefitted financially from the other: the restaurant provided

financial benefit for the parking garage, while the garage’s author-

ity maintained the premises, covered utilities, and made parking

available for the restaurant’s customers.

The Burton court empha-

sized that such a symbiotic relationship was not based solely on the

landlord-tenant relationship created through the lease.

Rather,

the arrangement constituted a partnership.

Therefore, under

Burton, a publicly funded arena, such as Amalie Arena, needs more

63. See DeSiato, supra note 53, at 413 (noting that through funding scheme,

arena escapes pure public or pure private model and acts more so as a private-

public hybrid).

64. Id. at 417 (citing Wasserman, supra note 3, at 542–53).

65. See id. at 417 n.36 (citing Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176,

182 (4th Cir. 2009)) (noting that few jurisdictions have adopted a particular test).

66. See generally Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)

(finding private restaurant to be state actor when it leased its premises from gov-

ernment and conferred mutual benefits with its governed landlord). See also De-

Siato, supra note 53, at 418 n.40 (discussing that while “symbiotic relationship” test

is accredited to Burton, mention of such test is nowhere in opinion).

67. See Burton, 365 U.S. at 719 (reporting publicly owned parking garage had

to lease to five tenants in order to cover construction costs and “debt-service”

requirements).

68. See id. at 716, 724 (arguing that allowing African Americans into restau-

rant would hurt business).

69. See id. at 725 (noting that two entities’ “interdependence” made it impossi-

ble for challenged discrimination to be considered “purely private”). Additionally,

the restaurant benefited from the parking authority’s tax-exempt status when mak-

ing its own building improvements. See id. at 724.

70. See id. at 725 (explaining every state action problem based on leasing must

be decided on case-by-case basis).

71. See id. at 724 (determining “restaurant . . . operated as integral part of . . .

public building”).

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than a lease with the city to satisfy the symbiotic relationship test; it

needs a more unified relationship to exist.

At least one district court has found that a publicly funded sta-

dium does satisfy this requirement.

In Ludtke v. Kuhn, the New

York Yankees banned female reporters from the clubhouse.

The

United States District Court for the Southern District of New York

ruled that a symbiotic relationship existed between the stadium and

the City of New York not only because the Yankees leased the sta-

dium from the city, but also because the city invested large amounts

of money into the stadium to improve it and draw in more fans.

Furthermore, the district court noted that even if the Yankees

wanted to retain its private entity character, “an institution’s inter-

est in retaining its private character may be outweighed by harm to

the public interest flowing from particularly offensive conduct.”

Therefore, the public’s interest in terminating the sexual discrimi-

nation would have outweighed the Yankee’s interest in remaining

private, even if a symbiotic relationship did not exist.

A court could easily find mutual benefits conferred between

the city of Tampa Bay and the Lightning.

The arena was con-

structed using approximately $124 million of public funds.

Addi-

tionally, more than $60 million, consisting of both public and

private funds, funded the Arena’s renovations from 2011 to 2015.

Further, the city benefits from having a professional ice hockey

team.

Thus, the conferring of such benefits between both entities

72. See id. at 726 (noting such can only be determined by “peculiar facts and

circumstances present[ed]”). The Court emphasized that its holding was that the

Fourteenth Amendment must be complied with when the State leases property in

the manner and the purpose shown in this particular case. See id. at 726.

73. See Ludtke v. Kuhn, 461 F. Supp. 86, 93 (S.D.N.Y. 1978) (finding New York

Yankee’s stadium functioned as state actor). See generally DeSiato, supra note 53, at

418.

74. See id. at 91–92 (describing while male reporters were permitted into the

clubhouse after games, female reporters were excluded to protect players’ privacy,

preserve baseball’s image as a family sport, and preserve notion of decency).

75. See id. at 94 (determining city benefits because its profits escalate when

game attendance increases).

76. Id. at 95 (citing Weise v. Syracuse Univ., 522 F.2d 397, 407–08 (2d Cir.

1975)).

77. See id. at 95–96 (addressing discrimination as compelling reason for mak-

ing Yankees state actor).

78. See DeSiato, supra note 53, at 419 (describing mutual benefits often con-

ferred between cities and their stadiums).

79. For a discussion of Amalie Arena’s funding, see Munsey & Suppes, supra

note 8.

80. See id.; see also Ludtke, 461 F. Supp. at 94 (noting city benefits from having

team and high attendance).

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should be enough for a court to deem the Lightning to be a state

actor.

2. Entwinement Test

The entwinement test looks to whether a private entity is so

intertwined with a public entity that its conduct takes on a public

character.

The Supreme Court created the test in Brentwood Acad-

emy v. Tennessee Secondary School Athletic Association

where it deter-

mined that a private association created to regulate public school

athletics was a state actor.

The Court found that the association

was so “pervasive[ly] entwine[d]” with schools that the association

must be considered a state actor.

The Court noted that public

schools composed eighty-four percent of the association’s member-

ship and also accounted for most of the association’s funding.

Additionally, the association’s officers were from the public schools

and the association acted through public school representatives.

Together these factors established the association as a clear state

actor.

81. See DeSiato, supra note 53, at 419 (determining that courts using symbiotic

relationship test would likely find professional sports teams to be state actors if

they lease stadium from city).

82. See id. at 420 (describing entwinement test). While a professional sports

team receiving public funds would most likely be considered a state actor under

the symbiotic relationship test, some scholars argue employing such a test is not

appropriate in First Amendment cases since the test was created in a discrimina-

tion case. See Shane Kotlarsky, What’s All the Noise About: Did the New York Yankees

Violate Fans’ First Amendment Rights by Banning Vuvuzelas in Yankee Stadium?, 20

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L.J.

35, 63–64 (2013) (explaining that Burton was decided during

Civil Rights era and was, therefore, more related to Equal Protection).

83. Brentwood Acad. v. Tenn. Secondary Sch. Ass’n, 531 U.S. 288 (2001).

84. See generally id. at 291 (holding non-profit association that regulated high

school sports in Tennessee to be state actor due to presence of state school officials

in organization).

85. See id. at 298 (concluding that while association was private, its status was

“overborne” by the large presence of public school officials in its inner workings).

86. See id. (concluding association would not exist without public school offi-

cials); see also DeSiato, supra note 53, at 420.

87. See Brentwood Acad., 531 U.S. at 291 (noting membership was limited to

principals, vice principals, superintendents, and public school administrators).

Further, the association’s staff members were eligible to receive a state pension.

See id.

88. See id. at 302 (finding entwinement to be “unmistakable” and “overwhelm-

ing”). Further considerations used by other lower courts include “whether state

officials are the primary-decisions makers in the organization, whether the private

actor is state-funded, and whether it is doing a job usually done by a state actor.”

Kotlarsky, supra note 82, at 64 (citing Villegas v. Gilroy Garlic Festival Ass’n, 541

F.3d 950, 955 (9th Cir. 2008)).

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There is no precedent specifically addressing professional

sports arenas and state action under the entwinement test.

How-

ever, according to at least one scholar, “a court would likely look at

the title of the facility’s ownership, who controls the facility opera-

tions, who maintains the authority to establish free speech . . . rules

in the facility, and whether the government provides police and

other security officials to enforce the club-created rules in the

facility.”

Regardless of strong evidence to support entwinement, courts

can and have declined to label private entities as state actors under

the test.

For instance, the Fifth and Ninth Circuit Courts of Ap-

peals have declined to deem associations as state actors, even

though the associations were hosting festivals on city-owned public

parks and the cities provided police officers to patrol the events.

Ultimately, a court must be convinced that the private actor and

state “are working so closely together [that they] cannot be

separated.”

There is strong evidence to support a claim that Amalie Arena

is a state actor under this standard.

First, Tampa Sports Author-

ity, a state-created authority, actually owns and maintains Amalie

Arena.

The authority is state-funded and responsible for any deci-

sions made concerning the facility.

Additionally, Amalie Arena

employs public safety officials for games.

Thus, both the police

89. See DeSiato, supra note 53, at 420 (concluding there is no case law on

entwinement test and sports arenas).

90. Id. (citing Wasserman, supra note 3, at 549) (referring to continued rela-

tionship in which city provides officers to stadium). One scholar has concluded

that having city police officers to regulate fan conduct would entwine the city and

the team, making the team a state actor. See Kotlarsky, supra note 82, at 65 (citing

Wasserman, supra note 3, at 549) (noting lack of precedent and predicting what

court would do).

91. See Kotlarsky, supra note 82, at 64–65 (noting that test is also described as

“‘close nexus’ test”).

92. See id. at 65 (citing Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950,

955 (9th Cir. 2008); Rundus v. City of Dallas, 634 F.3d 309 (5th Cir. 2011)).

93. Id. at 65–66 (concluding more than police presence at private event is

needed to fulfill entwinement test).

94. For a discussion of the entwinement test, see supra notes 82–93 and ac-

companying text.

95. For a discussion of Tampa Sports Authority, see supra note 12.

96. See Kotlarsky, supra note 82, at 64 (citing Villegas v. Gilroy Garlic Festival

Ass’n, 541 F.3d 950, 955 (9th Cir. 2008)).

97. See Scott Viau, Blackhawks Fan Booted from Tampa Arena After Cheering for

‘Wrong’ Team,

ATCH

: J

OLIET

ATCH

(June 7, 2015, 3:27 PM), http://patch.com/

illinois/joliet/former-joliet-resident-asked-leave-blackhawks-game-0 [https://

perma.cc/BKK7-7RHE] (discussing how police removed Blackhawks fan from

Lightning playoff game for cheering “too loud”).

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presence at games and the Authority’s title over the arena and its

control over facility operations are sufficient to lead a court to rea-

sonably conclude that the government is so pervasively entwined

with Amalie Arena and its operations that it is a state actor.

3. Public Function Test

Courts have also employed the “public function” test to assess

state action.

When considering such a test, courts ask whether

“the private entity exercise[s] powers which traditionally are exclu-

sively reserved to the state.”

100

In Marsh v. Alabama, the Supreme

Court found a company-owned town to be a state actor because the

town performed a traditional state function: civic operation.

101

Ad-

ditionally, the Sixth Circuit Court of Appeals, in United Church of

Christ v. Gateway Economic Development Corporation of Greater Cleve-

land,

102

found that a sidewalk along the Cleveland Indians’ stadium

operated like a normal sidewalk where anyone could use it; there-

fore, it performed a public function, making its owners state ac-

tors.

103

However, the Sixth Circuit declined to determine whether

the owners’ state actor status extended beyond the sidewalk and

into the stadium.

104

Accordingly, for a court to find that Amalie Arena performs

functions traditionally reserved for the government, it would have

to find that the Arena performs the function where the speech was

banned: the club seats.

105

Unlike the sidewalk along the Cleveland

Indians’ stadium, the club seats in Amalie Arena do not perform a

public function; rather, they are only available to fans who have

98. For a discussion of the entwinement test, see supra notes 84–88 and ac-

companying text.

99. See Marsh v. Alabama, 326 U.S. 501, 508–09 (1946) (finding company that

owned and controlled town to be state actor due to it performing role traditionally

performed by state).

100. DeSiato, supra note 53, at 421 (quoting Wolotsky v. Huhn, 960 F.2d 1331,

1335 (6th Cir. 1992)) (internal quotation marks omitted) (alteration in original).

101. See Marsh, 326 U.S. at 507–08 (noting town functioned as any other state-

operated town).

102. 383 F.3d 449 (6th Cir. 2004).

103. See id. at 453 (noting Indians’ sidewalk was distinguishable from private

sidewalk). See generally Wasserman, supra note 3, at 551.

104. See id. at 455 (failing to determine whether team was state actor in any

other area at the stadium because it concluded it did not need to analyze other

areas for the present claim).

105. See id.; see also DeSiato, supra note 53, at 422 (noting it would be unlikely

for court “to find state action for an entire facility”). For a discussion of the ban

and the seats affected, see Munsey & Suppes, supra note 8.

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paid for and reserved them.

106

Therefore, it would be unlikely for a

court to find the Arena to be a state actor under this test.

107

How-

ever, as already stated, a court would likely conclude that Tampa

Bay is a state actor under the symbiotic relationship test due to the

funding it receives from the city and the benefits the city receives

from having a professional ice hockey team.

108

Further, the arena

would likely be found to be a state actor under the entwinement

test due to the intertwinement between the Lightning and the city

in operating and maintaining the arena.

109

Therefore, this Com-

ment will proceed under the assumption that the arena is a state

actor in order to continue this constitutional inquiry.

110

B. Amalie Arena is a Designated Public Forum

Once a court finds that a private entity acts as a state actor, it

must then determine in what type of forum the speech occurred.

111

The Supreme Court has determined that there are three types of

public forums: (1) traditional public forums, (2) designated public

forums, and (3) nonpublic forums.

112

The type of forum “sets the

boundaries for how a club may limit activity protected by the First

Amendment in and around its facility.”

113

106. See Gateway Econ. Dev. Corp., 383 F.3d at 452 (citing sidewalk is available

for any individual passing through area).

107. See supra notes 105–106 and accompanying text (concluding club seats

do not perform public function).

108. For a discussion of the symbiotic relationship test, see supra notes 66–80

and accompanying text.

109. For a discussion of the entwinement test, see supra notes 82–98 and ac-

companying text.

110. For a discussion of state actors, see supra notes 62–109 and accompany-

ing text. For a discussion of whether Amalie Arena is a public forum and whether

the Lightning have any constitutional defenses, see infra notes 111–248 and ac-

companying text.

111. See DeSiato, supra note 53, at 422 (concluding forum analysis is critical in

determining team’s liability and is often outcome determinative in team’s ability to

impose regulations).

112. See Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46

(1983) (defining traditional public forum as government property devoted to as-

sembly and debate and designated public forum as government property that state

has opened up for expressive activity); see also Int’l Soc’y for Krishna Conscious-

ness, Inc. v. Lee, 505 U.S. 672, 678–79 (1992) (defining nonpublic forums as all

other government property that is not traditional or designated public forum); see

generally DeSiato, supra note 53, at 422.

113. DeSiato, supra note 53, at 422 (determining that public forum doctrine is

less applicable to teams and therefore provides them with more autonomy is re-

stricting speech).

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Traditional public forums are areas customarily held for assem-

bly and debate, such as parks.

114

In this forum, content-based re-

strictions are only allowed if they are narrowly tailored and serve a

compelling government interest, while reasonable time, place, and

manner restrictions are permitted so long as they serve an impor-

tant government interest and permit “ample alternative[s]” for the

speech.

115

Designated public forums are areas that are not traditional

spaces for speech, but the government has nevertheless opened

them for that purpose.

116

While the government is not required to

open up a forum for speech, if it does, its regulations must “bear a

heavy burden of justification.”

117

Like traditional public forums,

designated public forums may only impose content-based restric-

tions that meet strict scrutiny or reasonable time, place, and man-

ner restrictions.

118

Additionally, no viewpoint discrimination is

permitted in traditional public or designated public forums.

119

Finally, nonpublic forums are areas the government has not

opened for speech because of their function.

120

Regulations in this

forum only have to be reasonable and viewpoint neutral.

121

Courts

have determined that government offices, such as post offices and

airports, are non-public forums.

122

114. See Perry Educ. Ass’n, 460 U.S. at 45 (describing such areas as places that

have long been used to communicate ideas, discuss public issues, and assemble).

115. See id. (describing time, place, manner restrictions are content neutral).

See generally Ward v. Rock Against Racism, 491 U.S. 781 (1989) (allowing noise

restriction for concert in Central Park when restriction was in place so neighboring

residents would not be disturbed).

116. See Perry Educ. Ass’n, 460 U.S. at 45–46 (noting that while government did

not have to open property up for speech, it is still bound to uphold constitution in

these areas).

117. Kotlarsky, supra note 82, at 55 (internal quotation marks omitted) (quot-

ing City of Madison, Joint Sch. Dist. #8 v. Wis. Emp’t Relations Comm’n, 429 U.S.

167, 175 (1976)).

118. See id. (acknowledging government is not required to keep forum open

to speech).

119. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29

(1995) (regarding viewpoint discrimination as “egregious form of content

discrimination”).

120. See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,

679–80 (1992) (noting government “does not create a public forum [through]

inaction;” rather, forums are nonpublic unless government intentionally opens it

for speech).

121. See id. at 683 (determining restriction must only be reasonable, not

“most reasonable” or “only reasonable” restriction).

122. See id. at 683–85 (1992) (finding airport to be nonpublic forum); see also

United States v. Kokinda, 497 U.S. 720, 730 (1990) (finding post office to be non-

public forum).

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In determining whether Amalie Arena is a public forum, a

court would examine “the purpose of the facility’s construction, the

commercial nature of the stadium’s operation, any written policies

regarding the stadium’s purpose[,] . . . how consistently any regula-

tions limiting expressive activities are enforced[,]” and whether “ex-

pressive activity is consistent with” the forum’s primary function.

123

Because a forum can have areas with different designations, it is

unnecessary to consider Amalie Arena as a whole.

124

Rather, the

analysis needs to only focus on the area affected by the speech regu-

lation: the club seats in the grand stands.

125

A sports arena is not a

traditional public forum, such as a park, that has been customarily

reserved for assembly and debate.

126

Rather, the primary purpose

of the arena is to provide a forum for teams to play and fans to

watch.

127

While the Lightning does not have to allow any sort of speech

during its games, it has allowed it and actually encourages speech,

albeit only from home fans.

128

Therefore, a court would likely find

that the seats are a designated public forum because the arena has

opened those areas for speech for only certain people during cer-

tain periods of time.

129

IV. T

AMPA

’

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PPAREL

ESTRICTION

GAINST A

IRST

MENDMENT

LAIM

Tampa Bay’s visiting apparel restriction is subject to a First

Amendment challenge.

130

First, Tampa Bay is a state actor due to

123. DeSiato, supra note 53, at 423 (acknowledging different areas of arena

can have different public forum designations).

124. See id. (noting different areas within forum can have different

designations).

125. See Davidson, supra note 8 (explaining ban only affected fans seated in

club sections of arena).

126. See Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45, 55

(1983) (defining traditional public forum as one traditionally reserved for such

purposes).

127. See generally

MALIE

RENA

, http://www.amaliearena.com [https://

perma.cc/H6VC-ASY8] (last visited July 12, 2016) (describing arena as venue for

Lightning and explaining ticket policies for fans to watch games).

128. See Davidson, supra note 8 (quoting Lightning’s vice president’s wish to

fill arena with Lightning fans to support team).

129. See Kotlarsky, supra note 82, at 56 (determining Yankee Stadium is desig-

nated public forum). The grandstands are only open to speech when events are

occurring and are only open to fans with tickets. See id. (distinguishing grand-

stands from sidewalk or park, which are always open to speech).

130. For a discussion of the requirements Tampa Bay must meet in order to

be liable to a constitutional claim, see supra notes 62–129 and accompanying text.

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the close relationship it has with the city of Tampa Bay.

131

Further,

Amalie Arena is a designated public forum since it has been

opened up for fan speech.

132

Therefore, a visitor has standing to

bring a First Amendment claim.

133

In this part, Section A discusses

the content distinction principle in a designated public forum.

134

Since Amalie Arena is a designated public forum, the content dis-

tinction principle is a critical element in determining what level of

constitutional scrutiny Tampa Bay’s restriction must pass.

135

Sec-

tion B discusses unprotected speech and examines whether visiting

fans’ speech is constitutionally protected or not in Amalie Arena.

136

Finally, Section C explores whether Tampa Bay may zone visiting

fans in order to protect their home fans from being exposed to

speech with which they disagree.

137

A. The Content Distinction Principle: Tampa Bay’s Restriction is

Viewpoint Based

To determine whether the Lightning’s regulation is permissi-

ble, a court would use the content distinction principle.

138

The

content distinction principle is a judicial mechanism for determin-

ing whether a regulation is content-based or content-neutral.

139

content-based regulation is aimed at the subject or content of the

speech in question.

140

It is presumed to be unconstitutional.

141

Ad-

ditionally, a content-based regulation may discriminate on the basis

131. For a discussion of state actor requirements, see supra notes 52–109 and

accompanying text.

132. For a discussion of public forum requirements, see supra notes 111–129

and accompanying text.

133. See supra notes 111–129 and accompanying text (concluding Lightning

are state actor and Amalie Arena is a public forum).

134. For a discussion of content-based and content-neutral regulations in des-

ignated public forums, see infra notes 138–162 and accompanying text.

135. See Kotlarsky, supra note 82, at 44 (noting content-based regulations must

pass strict scrutiny, while content-neutral regulations must only be reasonable).

136. For a discussion of unprotected speech, see infra notes 163–195 and ac-

companying text.

137. For a discussion of zoning and the First Amendment, see infra notes

197–239 and accompanying text.

138. See Kotlarsky, supra note 82, at 43 (noting principle allows court to deter-

mine whether government is justified in its speech-based regulation).

139. See id. at 44 (explaining content distinction principle dictates whether

court will analyze regulation under strict scrutiny or intermediate scrutiny).

140. See id. (deeming content-based restrictions “most at odds” with First

Amendment).

141. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828

(1995) (determining “government may not regulate speech based on . . . content

or . . . message”).

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of viewpoint.

142

Viewpoint discrimination is a more flagrant viola-

tion of the First Amendment; therefore, the government must ab-

stain from such regulations.

143

In order to be constitutionally

permissible, any content-based regulation must pass strict scru-

tiny.

144

Under this standard, the state actor needs to show a com-

pelling interest for the regulation and that no less restrictive means

are available to meet that interest.

145

Alternatively, a content-neutral restriction is normally charac-

terized as a “time, place, or manner” restriction that regulates

speech by determining when, where, or how the speaker may en-

gage in the speech.

146

A content-neutral regulation is constitution-

ally permissible if it meets intermediate scrutiny, meaning it serves

an important government interest, is narrowly tailored to promote

that interest, and leaves open ample alternative channels for com-

munication.

147

Unlike content-based restrictions, content-neutral

restrictions do not have to be the least restrictive means available.

148

The Tampa Bay restriction is content-based as it is aimed at

visiting fans’ speech.

149

The regulation could pass strict scrutiny if

Tampa Bay shows a compelling interest for the regulation, such as

fan safety.

150

However, Tampa Bay would not escape so easily, as

they would inevitably face an even greater hurdle since designated

public forums are prohibited from imposing viewpoint discrimina-

tory regulations.

151

In other words, a team functioning as a state

actor must allow fans to either root for the home team or the away

142. See id. at 829 (finding viewpoint discrimination to be “egregious form of

content discrimination”).

143. See id. (determining viewpoint discrimination is never allowed in public

and designated public forums).

144. See Sable Commc’ns of California Inc. v. F.C.C., 492 U.S. 115, 126 (1989)

(noting government may normally not enforce a content-based restriction on

speech).

145. See id. (explaining if government can show both requirements, it may

regulate constitutionally protected speech).

146. See Kotlarsky, supra note 82, at 44 (noting restriction is unconcerned with

speech’s message).

147. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45

(1983) (classifying these restrictions as time, place, and manner regulations).

148. See Ward v. Rock Against Racism, 491 U.S. 781, 783 (1989) (noting re-

striction simply must not be “substantially broader than necessary”).

149. See Davidson, supra note 8. This regulation was obviously focused on

content as Lightning fans were permitted to wear their jerseys in the club sections.

See id.

150. See Sable Commc’ns, 492 U.S. at 421 (explaining content-based restrictions

must pass strict scrutiny).

151. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819,

828–29 (1995) (explaining that viewpoint discrimination cannot occur in desig-

nated public forum).

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team.

152

Clearly, the Lightning did not allow visiting fans to cheer

for their teams through wearing their team’s apparel in the club

sections.

153

Rather, they silenced visiting fans by refusing them ac-

cess to club seats if they expressed support for their team by simply

wearing jerseys.

154

Tampa Bay is not the first team to impose viewpoint discrimi-

natory regulations onto fans.

155

For example, in 2003, Pennsylvania

State University ordered employees at the Jordan Center, the uni-

versity’s basketball arena, to confiscate signs and posters fans

brought to games.

156

The signs bore “negative” messages about

Penn State’s then-head coach, Jerry Dunn.

157

The confiscation was

a viewpoint discriminatory practice, as signs with unrelated or posi-

tive messages were allowed to remain in the stadium.

158

Unfortunately, while such regulations of fan speech would

likely fail a First Amendment challenge, few are actually con-

tested.

159

For instance, there has been no known challenge to the

Lightning’s regulation as of the date of this publication.

160

If, how-

ever, they were to continue such an anti-visitor practice and face a

constitutional challenge, they would not automatically lose because

152. See Wasserman, supra note 3, at 525–26, 529–30 (extending such princi-

ple to include rooting for team or making critical statements against other teams).

153. See Spousta, supra note 22 (noting fans who wore visiting teams’ jerseys to

game were asked to either remove jersey or put on Lightning-colored apparel).

154. See Wasserman, supra note 3, at 583 (noting team may not promote own

viewpoint by silencing or removing fans from stadium if they advocate another

viewpoint).

155. See Clay Calvert & Robert D. Richards, Fans and the First Amendment: Cheer-

ing and Jeering in College Sports,

4 V

. S

PORTS

& E

. L.J.

1, 40 (2004) (citing lack of

case law). While teams have imposed such regulations, this is more so of a “specu-

lative problem” as few regulations are constitutionally challenged. See id. (discuss-

ing discriminatory regulations that have gone unchallenged).

156. See id. at 40 (recalling 2002–2003 Penn State men’s basketball team was

suffering through “disastrous” season).

157. See id. (describing negative signs as bearing messages: “Fire Dunn,” “Jerry

Dunn, Living on a Prayer”).

158. See id. (noting signs also did not include profane language, such as “Fuck

Jerry Dunn”).

159. See id. (describing restrictions on speech in college sports that have been

successful because they have never been challenged in court).

160. There is no record of any litigation over the policy. Instead, the Light-

ning have actually once again instituted the same policy during the 2015–2016

season. See Emma Mason, Pens Fans Check Your Jersey at the Door,

OCKEY

RIT-

ERS

(May 27, 2016), http://thehockeywriters.com/pens-fans-check-your-jersey-at-

the-door/ [https://perma.cc/6AF8-MMMV] (reporting Lightning enforced policy

during 2016 NHL Stanley Cup Playoffs).

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the regulation is viewpoint discrimination.

161

Rather, the Light-

ning could have two defenses: (1) the prohibited speech was not

constitutionally protected, or (2) the ban was merely a content-neu-

tral zoning restriction, as it zoned visiting fans and allowed them to

speak in other sections of the arena.

162

B. Unprotected Speech: Visitors’ Speech Does Not Fall into a

Constitutionally Unprotected Category

While the Constitution states that “no law [shall be made]

abridging the freedom of speech,” the Supreme Court has recog-

nized that “[t]he protections afforded by the First Amendment . . .

are not absolute” and “the government may regulate certain catego-

ries of expression consistent with the Constitution.”

163

Unpro-

tected categories “form[ ] ‘no essential part of any exposition of

ideas’ and possessed ‘such slight social value as a step to truth that

any benefit that may be derived from [their expression is] clearly

outweighed by the social interest in order and morality.’”

164

Con-

tent-based regulations, including viewpoint discriminatory regula-

tions, may target such unprotected categories.

165

While the Court

has recognized multiple categories of speech that do not deserve

First Amendment protection, the unprotected categories that could

possibly serve as defenses to the Lightning in a First Amendment

challenge are indecent speech, fighting words and true threats.

166

The following subsections will analyze whether these three catego-

ries apply in the case of the Lightning.

167

161. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829

(1995) (discussing ban of viewpoint discrimination regulations in designated pub-

lic forums).

162. For a discussion of speech that is not constitutionally protected, see infra

notes 163–195 and accompanying text. For a discussion of zoning, see infra notes

198–241 and accompanying text.

163.

U.S. C

ONST

. amend. I; Virginia v. Black, 538 U.S. 343, 358 (2003) (find-

ing statute banning cross burning performed for purpose to intimidate to be

constitutional).

164. Genevieve Lakier, The Invention of Low-Value Speech, 128

ARV

. L. R

2166, 2174 (2015) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572

(1942)).

165. See id. at 2211 (citing United States v. Stevens, 559 U.S. 460, 485 (2000)).

166. See generally Black, 538 U.S. at 359 (finding true threats not protected by

constitution); FCC v. Pacifica Found., 438 U.S. 726, 759–60 (1978) (finding inde-

cent speech where audience is captive to not be protected by constitution); see also

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (concluding fighting words are

not protected by constitution). But see Cohen v. California, 403 U.S. 15 (1971)

(allowing indecent speech to be constitutionally protected when audience is not

captive).

167. For a discussion of indecent speech, fighting words, and true threats, see

infra notes 168–196 and accompanying text.

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1. Indecent Speech

Tampa Bay could argue that visiting fans’ speech is indecent

and thus unprotected.

168

For instance, visitors may wear apparel or

shout cheers that contain certain, derogatory four-letter words.

169

In FCC v. Pacifica Foundation, the Supreme Court found indecent

speech is not protected by the First Amendment when it includes

“patently offensive” references to excretory or sexual activities or

organs and listeners have no other option but to listen to the

speech.

170

Such showings of support for the visiting team could

contain such “patently offensive” references.

171

Tampa Bay could argue that Lightning fans, being in a tightly

packed, enclosed arena, are captives and are unable to avoid the

indecent speech.

172

However, such a defense would likely fail, as

the captive-audience doctrine has never been extended to individu-

als in recreational spaces.

173

It is unlikely that a court would extend

the doctrine to an arena because fans voluntarily go to games and

are free to leave at any time.

174

Therefore, fans can either not at-

tend the games, leave the games, or simply tolerate offensive cheers

from visiting fans.

175

The ruling would not likely change even if

Tampa Bay pointed out that young, impressionable children were

part of the audience.

176

Speech cannot be reduced to what is ap-

propriate for children to hear.

177

Thus, it is inevitable and ac-

168. See Pacifica, 438 U.S. at 740 (rejecting that indecent has same meaning as

obscene and instead explaining indecent words to be words that do not conform

with “accepted standards of morality”).

169. See id. at 739 (noting words in question included: “shit, fuck, piss, cunt,

cocksucker, motherfucker, and tits”).

170. See id. at 748–50 (mentioning words that depict sexual activities can be

indecent depending on setting).

171. See id. at 748 (upholding FCC censoring radio broadcast containing pro-

fane words because indecent words may be constitutionally unprotected depend-

ing on situation).

172. See Cohen v. California, 403 U.S. 15, 21 (1971) (discussing individuals

are often “‘captives’ outside of . . . home and subject to objectionable speech”).

173. See Wasserman, supra note 3, at 570 (noting Supreme Court has only

extended doctrine to home, workplace, public schools, and reproductive health

facilities).

174. See id. at 570–71 (comparing stadium to walking on city street).

175. See id. at 572 (finding it unlikely since Court has protected “Fuck the

draft” message in courthouse, that it would find “Fuck Duke” or any other offen-

sive team message to be unprotected).

176. See Pacifica, 438 U.S. at 750 (finding one reason statute was indecent par-

tially because children could hear broadcast). See generally Wasserman, supra note

3, at 570–71 (explaining government’s ability to protect children from speech is

inhibited due to adults also being in audience).

177. See Pacifica, 438 U.S. at 750; see also Wasserman, supra note 3, at 571

(claiming this would result to being what is suitable for sandbox).

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cepted that children will hear some inappropriate speech in public

places.

178

Finally, even if a court were to extend the captive-audi-

ence doctrine to Amalie Arena, it could only allow for the limita-

tion of oral expression, as fans have the ability to avert their eyes

from an indecent jersey or sign.

179

Therefore, an indecent speech

defense is likely to fail.

180

2. Fighting Words

The Lightning could also argue that the ban on visiting team

apparel is justified because it is aimed to prevent Lightning fans

from attacking visiting fans.

181

Over sixty years ago, in Chaplinsky v.

New Hampshire, the Supreme Court defined the unprotected cate-

gory of fighting words as “those which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.”

182

Tampa Bay could argue that cheers and apparel in support of the

opposing team could lead Lightning fans to inflict injury upon visit-

ing fans.

183

However, the Supreme Court has limited the category

to only direct, personal insults.

184

Hence, a visiting fan would have

to yell words to a Lightning fan that would provoke such imminent

violence.

185

It is unlikely that a court would agree with such an ar-

gument, as visiting fans’ apparel or support for the opposing team

178. See Pacifica, 438 U.S. at 759–60 (pointing that speech would not be re-

stricted simply because it is not acceptable to sensitive adults).

179. See Cohen v. California, 403 U.S. 15, 21 (1971) (finding outside home,

audience has different privacy interests and could simply “avert[ ] their eyes from

indecent speech”).

180. See id. In Cohen, the petitioner wore a jacket in public that read “Fuck

the draft” and was consequently charged with disturbing the peace. See id. at 16.

The Court found that this was an impermissible restriction because viewers who

found the speech disturbing were not captive to viewing it, but could simply look

the other way to avoid it. See id. at 21–22. Therefore, like the audience in Cohen,

Lightning fans could look the other way to avoid pro-visiting team messages.

181. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (recognizing

some words are likely to cause fight).

182. Id. at 572 (determining such words are not proper tools of communica-

tion and therefore criminally punishing their utterances is constitutionally

permissible).

183. See Stu Hackel, From Fiery Riots to Shoe-Beatings, There’s an Ugly Side to

Hockey Fans,

OCKEY

EWS

(Dec. 30, 2014), http://www.thehockeynews.com/

news/article/from-fiery-riots-to-shoe-beatings-theres-an-ugly-side-to-hockey-fans

[https://perma.cc/6Z9L-LKLP] (describing fans attacking one another and

referees).

184. See Calvert & Richards, supra note 155, at 27 (citing Gooding v. Wilson,

405 U.S. 518, 523 (1972)) (limiting fighting words to speech that has “direct ten-

dency to cause acts of violence by the person to whom, individually, the remark is

addressed”) (internal quotation marks omitted).

185. See id. at 28 (predicting fighting words situation would happen when one

fan gets in face of opposing fan).

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is normally not directed at individual fans.

186

Therefore, the un-

protected category has extremely limited use and would likely not

help the Lightning.

187

3. True Threats

The Lightning could also argue that visiting fan speech is com-

posed of true threats.

188

True threats are “those statements where

the speaker means to communicate a serious expression of an in-

tent to commit an act of unlawful violence to a particular individual

or group of individuals.”

189

The speaker does not need to “actually

intend to carry out the threat;” rather, mere intimidation is suffi-

cient.

190

Courts generally employ a “reasonable person” standard

to determine whether speech could be interpreted as a serious ex-

pression of the intent to commit an act of unlawful violence.

191

However, courts have varied in whether to apply the reasonable

person standard to the speaker or to the recipient.

192

Such uncer-

tainty is trivial in this context because Tampa Bay’s argument here

would be inherently flawed.

193

It is almost impossible that a player,

referee, or home fan would interpret a visiting fan’s cheers as an

“expression of an intent to commit an act of unlawful violence.”

194

Rather, most cheers directed towards the opposing team or referees

usually consist of heckling rather than threats of imminent vio-

186. See

HOP

NHL

, http://shop.nhl.com/ [https://perma.cc/K5MG-9ZUG]

(last visited June 12, 2016) (showing most NHL apparel simply bears the name of

team and the name of player and his number).

187. See Calvert & Richards, supra note 155, at 28 (finding fighting words doc-

trine unhelpful in dealing with rowdy fans in stadiums).

188. See Virginia v. Black, 538 U.S. 343, 363 (2003) (finding burning of cross

on person’s yard to constitute true threat).

189. Id. at 359 (citing Watts v. United States, 394 U.S. 705, 708 (1969); R.A.V.

v. City of St. Paul, 505 U.S. 377, 388 (1992)).

190. Id. at 359–60 (determining that “prohibition on true threats ‘protect[ ]

individuals from the fear of violence’ and . . . ‘from the possibility that the

threatened violence will occur’”) (quoting R.A.V., 505 U.S. at 388).

191. See Calvert & Richards, supra note 155, at 28 (citing Doe v. Pulaski Cty.

Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002)).

192. See id. at 28–29 (quoting Doe, 306 F.3d at 622) (noting some appellate

courts look at whether speaker would view speech as threat while other courts

looks at whether recipient would view speech as threat).

193. See id. at 29 (finding true threat standard unhelpful in regulating specta-

tor speech).

194. See id. (claiming most cheers towards opposing teams do not constitute

threats but are more so heckling).

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lence.

195

Therefore, the ban on apparel is not justified under the

true threat doctrine.

196

C. A Zoning Defense: Can Tampa Bay Zone Visiting Fans to

Protect Season Ticket Holders from Disagreeable

Speech?

While Tampa Bay’s executive vice president of communica-

tions, Bill Wickett, stressed that the Lightning’s visiting team ap-

parel ban was created to maintain a hometown environment, he

also explained that the team instituted the ban as a customer ser-

vice effort in response to season-ticket holders complaining that too

many visiting fans were in the arena’s exclusive seating areas, such

as the club seating section.

197

Tampa Bay club season ticket holders

pay a premium price for their tickets to Lightning games.

198

Thus,

it is understandable that the Lightning wish to please their top-tier

guests and honor their wishes to not see visiting fans in the club

sections.

199

The Lightning ban only affects approximately 1,400 seats in

Amalie Arena, an arena that seats about 19,204 fans.

200

Hence, vis-

iting fans had the opportunity to sport their team’s apparel in

about ninety-three percent of the arena.

201

Therefore, the Light-

ning could respond to a First Amendment claim by arguing that the

visiting apparel ban was not a blanket ban against visitor speech,

but rather a mere zone for unpopular speakers so that the Light-

ning’s higher paying customers would not have to see such disa-

greeable speech.

202

195. See id. (acknowledging that athletes and referees know they must put up

with such taunts).

196. See Virginia v. Black, 538 U.S. 343, 359, 363 (2003) (determining threat

must “communicate a serious expression of intent to commit . . . violence”).

197. For a discussion of Tampa Bay’s ban and home advantage, see supra note

22 and accompanying text; see also Spousta, supra note 22 (explaining many of

these visiting fans wore their team’s apparel in these exclusive sections).

198. See Season Ticket Pricing,

AMPA

IGHTING

, http://lightning.nhl.com/

v2/ext/2016-17_AllPlans_OneSheeter.pdf—high%20paying

(

last visited Mar. 18,

2016) (reporting Chase Club and Lexis Lounge season ticket holders pay between

$6200-$12,500 a season); see also Davidson, supra note 8 (determining Lightning

ban amounts to “separate but equal” seating because it promises only wealthier

fans zone without visiting fans).

199. See Spousta, supra note 22 (reporting some season-ticket holders com-

plained about number of visiting fans in club seating).

200. See id. (explaining only two sections of seats are affected: Chase Club and

Lexus Lounge).

201. See id. (noting ban only affects 7.2% of arena seating).

202. For a discussion of zoning policies and arguments, see infra notes

203–238 and accompanying text.

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It is not uncommon for sports arenas to zone different catego-

ries of fans into different sections of the arena where their speech is

less likely to cause harm.

203

For instance, many universities seat

their bands and student sections away from visiting teams in order

to protect the teams from interference, intimidation, and confron-

tation with home fans.

204

Additionally, many arenas have created

family sections where the use of profanity is banned.

205

These

“buffer” sections have never been constitutionally challenged.

206

However, the Supreme Court has examined ordinances intended to

zone speakers from certain audiences.

207

These zoning ordinances

have been content-neutral.

208

In Hill v. Colorado, a statute made it

illegal to “‘knowingly approach’ within eight feet of another per-

son, without that person’s consent, ‘for the purpose of passing a

leaflet or handbill to, displaying a sign, to, or engaging in oral pro-

test, education, or counseling with such other person’” within 100

feet of any healthcare facility.

209

Although the zoning statute was

aimed at abortion protesters, the Court found it to be content-neu-

tral because it did not regulate the content of the protestor’s

speech, but merely where the speech occurred.

210

Further, the

Court determined that the statute did not take aim at any particular

viewpoint, since it applied to all demonstrators.

211

Therefore, even

though the law seemingly took aim at anti-abortion protestors, the

Court upheld the ordinance.

212

The Supreme Court recently found another zoning statute af-

fecting anti-abortion protesters to be content-neutral in McCullen v.

203. See Calvert & Richards, supra note 155, at 43 (mentioning this is common

in college sports).

204. See id. (explaining National Collegiate Athletic Association (NCAA) has

“lauded” schools that have adopted such policy).

205. See id. at 44–45 (noting alcohol is also banned from section).

206. See id. (discussing collegiate regulations that have gone unchallenged).

207. See generally Hill v. Colorado, 530 U.S. 703 (2000) (upholding zone

outside of healthcare facility); McCullen v. Coakley, 134 S.Ct. 2518 (2014) (finding

zone outside of reproductive healthcare facility to be content-neutral but not nar-

rowly tailored); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (up-

holding zone affecting adult movie theaters).

208. For a discussion of content-neutral restrictions, see supra notes 146–147

and accompanying text.

209. Hill, 530 U.S. at 707–08 (finding statute placed no restriction on content

of message).

210. See id. at 708, 725 (inquiring as to whether statute was simply time, place,

manner restriction).

211. See id. at 725–32 (looking to state legislative history and Colorado Su-

preme Court’s holding).

212. See id. at 735. The dissent determined the statute was content-based be-

cause it set forth impermissible content: protesting, educating, and counseling. See

id. at 744 (Scalia, J., dissenting).

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Coakley.

213

Unlike the Colorado statute in Hill, however, the statute

in McCullen only applied to areas outside reproductive care facili-

ties.

214

Nonetheless, the Supreme Court determined the statute

was content-neutral because it did not matter what individuals said,

but where they said it outside of the facilities.

215

The statute’s pur-

pose was to ensure public safety, allow unrestricted access to the

healthcare facilities, and keep sidewalks and walkways from conges-

tion.

216

However, the Court made it clear that simply being con-

tent-neutral will not make a zoning ordinance constitutionally

permissible.

217

Rather, a content-neutral zoning ordinance must be

narrowly tailored, meaning “it must not ‘burden substantially more

speech than is necessary to further the government’s legitimate in-

terests.’”

218

The Court recognized that while the government had a

legitimate interest in protecting public safety and preventing har-

assment and intimidation of patients and facility employees, the

statute burdened “substantially more speech than necessary.”

219

The Court pointed that other states have criminalized harassment

and intimidation outside of abortion facilities, rather than establish-

ing no-speech zones.

220

Finally, the Court has acknowledged that establishing speech

zones for the speech’s “secondary effects” is a content-neutral, con-

213. See McCullen v. Coakley, 134 S.Ct. 2518, 2531 (2014). The zoning statute

made it illegal to “knowingly enter or remain on a public way or sidewalk adjacent

to a reproductive health care facility within a radius of 35 feet.” Id. (quoting

ASS

. L

AWS

ch. 266, § 120E1/2(b) (West 2012)).

214. See id. at 2525, 2531 (noting Massachusetts’s legislature created statute to

“address clashes between abortion opponents” and pro-choice advocates).

215. See id. at 2531–32, 2538–39 (explaining statute would be content-based if

it required police to examine content when determining whether violation

occurred).

216. See id. at 2531, 2538–39 (noting Court had previously found such reasons

to be content-neutral).

217. See id. at 2534 (holding statute was unconstitutional because it was not

narrowly tailored). For a discussion of content-neutral regulations and intermedi-

ate scrutiny, see supra notes 146–147 and accompanying text.

218. McCullen, 134 S.Ct. at 2535 (quoting Ward v. Rock Against Racism, 491

U.S. 781, 799 (1989)).

219. Id. at 2537 (concluding there are less restrictive alternatives).

220. See id. (noting at least dozen other states had such laws). The law the

Supreme Court offered as an example for Massachusetts subjected anyone who “by

force or threat of force or by physical obstruction, intentionally injures, intimidates

or interferes with or attempts to injure, intimidate or interfere with any person

because that person is or has been . . . obtaining or providing reproductive health

services” to criminal and civil penalties. Id. (quoting Freedom of Access to Clinic

Entrances Act of 1994, 18 U.S.C. § 248 (a)(1)) (internal quotation marks

omitted).

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stitutionally permissible restriction.

221

In Young v. American Mini

Theatres, Inc., the Supreme Court upheld an ordinance requiring

adult movie theaters to not be within 500 feet of any residential

area, nor be within 1000 feet of any other adult theater.

222

The

Court found the ordinance was not content-based because it was

not concerned with the content of the movies being shown, rather

it was aimed at the secondary effects of having adult theaters in the

community, such as an increase in crime, a decline in property val-

ues, and the exodus of homeowners and businesses.

223

The Court has rejected that the impact of speech on listeners is

a secondary effect of speech.

224

In Boos v. Barry, the statute at issue

made it illegal to

display any flag, banner, placard, or device designed or

adapted to intimidate, coerce, or bring into public odium

any foreign government, party, or organization . . . within

500 feet of any building . . . used or occupied by any for-

eign government . . . as an embassy . . . or to congregate

within 500 feet of any such building.

225

The government claimed the law was content-neutral because

it was aimed at the secondary effects of such speech: “shield[ing]

diplomats from speech that offends their dignity.”

226

The Court re-

jected that emotive impact constituted a content-neutral secondary

effect.

227

Rather, it explained that such a regulation was content-

based because it focused on the direct impact of the speech on its

audience.

228

Supporting Boos’s holding, McCullen determined that

if the reproductive healthcare facility zoning ordinance was con-

cerned with the “‘[l]isteners’ reactions to speech’” it would not be

221. See Young v. American Mini Theatres, 427 U.S. 50, 66, 69–71 (1976)

(finding city’s interest in preventing crime, preserving property values, and pro-

tecting businesses to be secondary effects that justified zoning ordinance).

222. See id. at 52 (mentioning ordinance also barred theaters from being

within 1000 feet of ten other unnamed “regulated uses”).

223. See id. at 54, 71–73 (noting real estate experts and urban planners came

up with these secondary effects).

224. See Boos v. Barry, 485 U.S. 312, 321 (1988) (rejecting emotive impact as

legitimate secondary effect).

225. Id. at 315 (quoting D.C.

ODE

§ 22-1115 (1981)).

226. Id. at 322 (claiming protection of diplomats’ dignities to be obligation of

international law).

227. See id. at 320–21 (clarifying that regulations for secondary effects have

nothing to do with content of speech).

228. See id. at 321 (explaining if adult movie theater ordinance was created to

prevent psychological damage, then it would have been content-based).

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content-neutral.

229

In his concurrence in McCullen, Justice Scalia

explained, “[p]rotecting people from speech they do not want to

hear is not a function that the First Amendment allows the govern-

ment to undertake.”

230

Rather, the First Amendment guarantees

“the right to attempt to persuade others to change their views.”

231

Based on Tampa Bay’s rationale for the Lightning’s ban on vis-

itor apparel, the restriction is obviously in place to protect club fans

from hearing speech that they simply do not wish to hear.

232

Justice Scalia explained in McCullen, the First Amendment does not

allow such a defense.

233

Tampa Bay could attempt to argue that the

restriction is like the zoning in Hill and is content-neutral because it

does not restrict visiting fans to silence, but merely regulates where

they are allowed to speak.

234

Further, the team could argue that

like the statute in McCullen, it is permissible to exempt certain cate-

gories of individuals from the restriction, here being the Light-

ning’s own fans.

235

Regardless of Tampa Bay’s zoning defense, it is evident that

the ban is not content-neutral.

236

The team enacted it because sea-

son ticket holders did not want to see the pro-visiting team mes-

sage.

237

Like the restriction in Boos, the ban is in place to protect

229. McCullen v. Coakley, 134 S.Ct. 2518, 2531–32 (2014) (quoting Boos, 485

U.S. at 321) (alteration in original). The Court went on to explain that Massachu-

setts would not be able to justify the statute by offering that the speech occurring

outside abortion clinics made listeners uncomfortable. See id.

230. Id. at 2546 (Scalia, J., concurring). Justice Scalia disagreed with the ma-

jority that the statute was content-neutral and instead found it to be content-based

and subject to strict scrutiny. See id. at 2544–46 (Scalia, J., concurring) (determin-

ing that content-based restriction failed strict scrutiny because protecting an audi-

ence from disagreeable speech is not compelling interest); see also Cohen v.

California, 403 U.S. 15, 21 (1971) (finding that allowing government to “shut off

discourse solely to protect others from hearing it” without evidence of a substantial

privacy interest would “effectively empower a majority to silence dissidents simply

as a matter of personal predilections”).

231. Hill v. Colorado, 530 U.S. 703, 716 (2000); see also Terminiello v. City of

Chicago, 337 U.S. 1, 4 (1949) (finding “function of free speech . . . is to invite

dispute”).

232. See Spousta, supra note 22 (explaining policy was put into effect after

season ticket holders complained about number of visiting fans in these exclusive

sections).

233. See McCullen, 134 S.Ct. at 2546 (Scalia, J., concurring) (refusing to find

that protecting audience from disagreeable speech was compelling interest).

234. See Hill, 530 U.S. at 707–08 (allowing zoning was not shutting down

speech, but restricting it to certain areas).

235. See McCullen, 134 S.Ct. at 2526, 2531–32 (acknowledging that certain

classes of individuals were exempt from zoning restrictions).

236. For a discussion of content-neutral zoning restrictions, see supra notes

208–231 and accompanying text.

237. See Spousta, supra note 22; see also Davidson, supra note 8 (noting Light-

ning never justified ban with safety concerns).

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IT WITH

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loyal Tampa Bay fans from being subjected to speech that they do

not wish to hear.

238

The ban clearly is in conflict with the First

Amendment’s guarantee to have the ability to attempt to persuade

others to change their views. Consequently, it is a viewpoint-based

restriction that cannot stand a constitutional challenge.

239

V. C

ONCLUSION

Because the Tampa Bay Lightning is a state actor and Amalie

Arena is a designated public forum, the Lightning can be subject to

a First Amendment claim, should a visiting fan bring one in the

future.

240

The Lightning infringed upon visiting fans’ speech by

banning the fans from sporting their own team’s apparel while al-

lowing Lightning fans to continue to support their home team.

241

Further, the Lightning do not have a valid defense as the First

Amendment protects the fans’ speech and the ban is not a content-

neutral zoning restriction.

242

Creating the ultimate home environ-

ment and pleasing season ticket holders are simply not sufficient

justifications for the infringement.

243

Therefore, if a visiting fan

were to challenge such a restriction, a court would likely find the

ban to be unconstitutional.

244

First and foremost, in order to avoid any time-consuming and

costly litigation, Tampa Bay should not have this policy in future

seasons.

245

However, this seems unlikely to occur as the Lightning

instituted the same policy during its 2016 Stanley Cup playoff

run.

246

Therefore, the NHL and other professional sports leagues

should take the lead and ban teams from instituting such policies,

not only to protect teams from litigation, but also to protect the

238. See Boos v. Barry, 485 U.S. 312, 321 (1988) (rejecting emotive impact as

legitimate secondary effect).

239. For a discussion of viewpoint-based regulations in designated public fo-

rums, see supra notes 116–119 and accompanying text.

240. For a discussion of state action, see supra notes 62–109 and accompany-

ing text. For a discussion of public forums, see supra notes 111–129 and accompa-

nying text.

241. For a discussion of how visiting fans’ speech is constitutionally protected,

see supra notes 133–239 and accompanying text.

242. For a discussion of content-distinction principle and how it applies to the

Lightning, see supra notes 138–149 and accompanying text.

243. For a discussion of the Lightning’s justifications for the ban, see supra

notes 22 and 197 and accompanying text.

244. For a discussion of how visiting fans’ speech is constitutionally protected,

see supra notes 133–239 and accompanying text.

245. For a discussion of the potential constitutional arguments fans have

against the Lightning, see supra notes 53–239 and accompanying text.

246. See Mason, supra note 160 (reporting Lightning enforced same policy in

2016 when it played Pittsburgh Penguins in semifinals).

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[Vol. 24: p. 81

integrity and fairness of their games.

247

Due to the effect fans can

have on games, if other teams and sports adopt policies similar to

the Lightning’s, the fairness of games could be seriously compro-

mised.

248

Further, the popularity of sports may diminish as visiting

fans continue to be excluded from the teams and games that they

know and love.

249

For these reasons, Tampa Bay should simply stop

enforcing this policy.

250

Kaitlin Shire*

247. For a discussion of home advantage, see supra notes 17–51 and accompa-

nying text.

248. See id. (determining home advantage is real phenomenon).

249. See Carson, supra note 6 (discussing Lightning ban in place so visiting

fans will not attend games). Commissioners in professional sports have the duty to

protect the integrity of their leagues. See

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art. VI § 6.1;

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ATIONAL

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art. VIII § 8.3, available at

http://www.nfl.com/static/content/public/static/html/careers/pdf/co_.pdf

[https://perma.cc/R4QA-KHHZ];

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art. 24 § a.;

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2012–2016

art. XI § A(1)(b),

available at http://mlbplayers.mlb.com/pa/pdf/cba_english.pdf [https://

perma.cc/QY8W-XMNN] (providing commissioners with power to preserve integ-

rity of their respective games). For a discussion of how the Lightning’s policy

threatens the fairness of games, see supra notes 17–51 and accompanying text.

250. For a discussion of the unconstitutionality and unfairness of the Light-

ning’s visitor jersey policy, see supra notes 17–239 and accompanying text.

* J.D. Candidate, May 2017, Villanova University Charles Widger School

of Law; University of Pittsburgh, 2014. I would like to thank my parents and sisters

for their constant love and support. I dedicate this comment to my grandmother,

Shirley Carvelli.