Calif. court sacks case against football fan

Wednesday, August 10, 2011

It’s a new football season, but a San Diego judge just wrapped up a play from 2009.

Superior Court Judge Gale Kaneshiro ruled that a Kansas City Chiefs fan was exercising his First Amendment rights when he made a single-fingered gesture toward the crowd during a Chiefs-Chargers game at Qualcomm Stadium in San Diego. The fan, Jason Ensign, was grabbed by security guards and pulled away from his seat after refusing to go with them for a conversation.

Ensign was charged with misdemeanor battery for fighting off a security guard, but Kaneshiro said his resistance was not a crime under the circumstances.

“Words alone, no matter how offensive or exasperating, do not justify the initial use of unlawful force,” Kaneshiro wrote, according to the Associated Press.

The judge said security guards should have asked Ensign to leave voluntarily. If he had refused, the guards could have used reasonable force to remove him on grounds of trespassing.

Unruly fan language and behavior can be disruptive but rarely break the law. The Chiefs fan’s hand motion is commonly described as an “obscene gesture,” but it doesn’t meet the legal definition of obscenity, which involves explicit sexual content. Professional sports teams usually rely on language posted in connection with tickets sales, establishing a contractual commitment to behave civilly.

Kaneshiro concluded that Ensign did violate NFL policy, but punishment of that infraction was pre-empted by the security guards’ use of force.

When it comes to matters of free speech, private entities can set limits that the government cannot. In theory, at least, ticket buyers are fully informed of the limits of their free expression and can expect others around them to conform to similar restrictions. That’s a reasonable, civil and contractual solution, even if not always honored.

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