Genevieve Lakier, University of Chicago Law School, is publishing Sport as Speech in the University of Pennsylvania Journal of Constitutional Law (forthcoming). Here is the abstract.
Sports play a tremendously important role in American public culture, yet games of spectator sport are not generally recognized as expression protected by the First Amendment. This is notwithstanding the extension in recent years of First Amendment protection to a wide variety of other kinds of nonverbal art and entertainment. This Article argues that the denial of free speech protection to spectator sport is wrong both doctrinally and when considered in light of the aims and purposes of the First Amendment. Drawing upon an extensive body of social scientific research examining the practice and cultural significance of spectator sports, it argues that games communicate the sorts of messages to which First Amendment protection extends. In providing viewers dramatic spectacles of victory and defeat, and in offering fans a symbol around which to rally around, spectator sports also reflect and help shape public attitudes and beliefs about individual excellence, political community and identity, race, gender, and sexuality — even competition itself. The Article argues that the same justifications that support the extension of First Amendment protection to art and entertainment therefore support extending protection to spectator sport, and that the exclusion of spectator sports from the category of expressive conduct furthers none of the purposes of the First Amendment. Instead, it merely distorts the doctrine, by relying on an ultimately unjustifiable distinction between artistic and athletic performance, and live and mediated speech.Download the full text of the article from SSRN at the link.