Speech in government-owned stadiums:

ESPN reports that UMD may ban “vulgarities” said by fans in its stadium. I think that would be constitutionally permissible, and here’s why.

     Vulgarities are generally protected by the First Amendment, unless they fit within the fighting words exception (which usually covers only face-to-face insults that have a tendency to start an immediate fight). You can’t be sent to jail for them, or sued for them. The government can’t use its sovereign power to punish you for them.

     But when the government owns certain property, it may have extra power as landowner to restrict speech on that property, even if it lacks the power as sovereign to restrict the speech in other places. The key word here is “may”; sometimes the government has this extra power, and sometimes it doesn’t. The exact rules depend on the nature of the government property. For these purposes, government property can be divided into four categories for First Amendment purposes (actually, there are more, such as K-12 schools, prisons, etc., but I set that aside for now):

1. Traditional public fora covers sidewalks, parks, and streets. In such fora, the government gets no extra power from its status as landowner. Either the speech is within one of the First Amendment exceptions (for instance, because it’s incitement, false statement, etc.), in which case it can be punished; or, if it’s outside the exceptions, then the government can’t ban it from traditional public fora.
2. Designated public fora covers property that the government has opened up for members of the public (either all members or some subset) to express their own views (either on all subjects or on some subject). A classic example of this is university classrooms that aren’t being used, and that many public universities open up for student groups to use. Here, the government can limit the use by subject matter, for instance to curriculum-related speech, or to speech only about science, or some such. But once the speech fits within the forum’s designation — for instance, it is indeed curriculum-related speech by a student group, which is what the forum was opened for — then the rule is the same as in traditional public fora.
3. Nonpublic fora are other government property onto which members of the public can go, but which aren’t intended by the government as places for the public to express itself. A classic example would be the hallways of a government building, or the passageways of a government-run airport. A government-run stadium would also qualify. Here the government may impose reasonable, viewpoint-neutral speech restrictions. Unlike in traditional public fora, the restrictions may be content-based, so long as they’re viewpoint-neutral.
4. Government property that the government is using for its own speech — for instance, a billboard being used to convey the government’s message, or a government-run newspaper or TV station — is not a forum at all. Here, the government may control the speech even based on its viewpoint, since the property is supposed to be used for the government’s own views, not contrary views.

This is of course a huge oversimplification. I teach a 50-hour class on First Amendment law, and even that is an oversimplification — don’t ask me for a complete set of rules in several paragraphs. Still, I hope it captures the basic principles adequately for our purposes.

     As I mentioned, it looks like a stadium is probably a nonpublic forum. That means that the government can impose a viewpoint-neutral ban on vulgarities (such a ban would, I think, easily pass the reasonableness requirement). Much depends on the details of how “vulgarity” is defined; but if it basically means profanities and personal insults, then it should probably be fine. And while any likely definition of vulgarity would necessarily be somewhat vague, I suspect that courts wouldn’t find that to be too much of a problem, especially when the only thing that’s at stake is eviction from a nonpublic forum, rather than criminal prosecution.

     But if anyone can e-mail me the text of the proposed policy, I’d be glad to look at it more closely and see whether it indeed seems viewpoint-neutral.