First Amendment & Punishment?!?
John A. Quayle
blueoval at SGI.NET
Thu Jan 13 14:49:49 MST 2000
Wednesday, January 12
Law doesn't protect Rocker from punishment
The First Amendment guarantees Atlanta Braves reliever
John Rocker the right to free speech. What it doesn't give him is the right
to be a ballplayer.
Rocker was ordered to undergo psychiatric testing after he
was quoted in a magazine denigrating blacks, foreigners and gays.
Commissioner Bud Selig is waiting for those test results before deciding
whether to suspend or fine the 25-year-old left-hander.
While few support Rocker's opinions, some have defended
his right to express them based on the First Amendment's guarantee of free
speech. But the First Amendment -- "Congress shall make no law ...
abridging the freedom of speech" -- won't help Rocker.
Its message, honed over two centuries, is that while the
government can't stop you from speaking your mind, the Constitution
provides no shield in the private sector.
"The First Amendment only applies to state action. This
isn't state action," said Harvard Law School professor Paul Weiler, who's
planning to place Rocker alongside former Cincinnati Reds owner Marge
Schott in the next edition of his casebook. "In terms of the law, his
prospects are not great."
That's why private golf clubs are still allowed to
discriminate in ways that a public one could not. And that's why Rocker
might be immune if he was a pitcher at a public university, or a boxer
licensed by the state.
In major league baseball, though, he's fair game.
Rocker saved 38 games for the Braves last year. But he
created a personal rivalry with the city of New York during the NL
Championship Series, calling Mets fans "stupid" and accusing them of
throwing batteries and insulting his mother.
He went even further in a Sports Illustrated article last
month, saying he would never play for a New York team because he didn't
want to ride a train "next to some queer with AIDS." He bashed immigrants,
saying "How the hell did they get in this country?" He also called a black
teammate a "fat monkey," spit on a toll machine and mocked Asian women.
Rocker later apologized and said he is not racist.
The Major League Agreement gives the commissioner the
power to punish any act considered "to be not in the best interests of the
game of baseball." Other commissioners have similar best-interests powers;
some, such as those in the NHL, NBA and PGA, also have the specific
authority to punish players or employees for speech detrimental to
the league or sport.
That's why the First Amendment couldn't protect Denver
Nuggets guard Mahmoud Abdul-Rauf when he refused to stand for the
"Star-Spangled Banner," saying that to do so would conflict with his Muslim
beliefs. NBA rules required every player to "stand respectfully" during the
national anthem, and Abdul-Rauf eventually found a way to do so without
compromising his beliefs.
And that's why the First Amendment couldn't protect
Schott, suspended from baseball for racist comments about blacks and Jews.
Or then-Miami Dolphins linebacker Bryan Cox, who was fined for making an
obscene gesture at Buffalo fans after enduring what he said was racial abuse.
And that's why the First Amendment won't protect Rocker,
either, though the collective bargaining agreement can send the matter to
an independent arbitrator.
As the great jurist Oliver Wendell Holmes once wrote: "A
policeman may have a constitutional right to talk politics, but he has no
constitutional right to be a policeman."
More than 100 years later, the kernel of truth remains.
No one can lock Rocker up for saying what he wants. But
the fans can refuse to go to his games, and -- if that concerns them --
teams can refuse to sign him and the league can ban him or take any other
action the commissioner deems to be in the best interest of baseball.
A baseball player may have a constitutional right to talk
politics, but he has no constitutional right to be a baseball player.
[NB: This fool also has no Contitutional right to be a writer! -JAQ]
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