The NBA’s continuing conversation on social justice: what are the limits of freedom of Expression?

On the evening of Thursday, March 22nd, protestors gathered outside of the Golden 1 Center, the home arena of the NBA’s Sacramento Kings. The protestors were gathering in response to the shooting death of twenty-two year old Stephon Clark. Clark, an African-American man, was unarmed and was shot twenty times by two Sacramento police officers after being suspected of breaking into one home and three vehicles.[1]

The demonstration was peaceful in nature, however the protestors blocked the entrances as fans began to attempt to enter the arena for the Sacramento Kings scheduled home game against the Atlanta Hawks that evening. While the NBA decided not to cancel the game entirely, the Kings organization did decide to shut down the entrances to the arena “as a way of maintaining the peace and respecting the protest”[2] as they could not “ensure ticketed fans could safely enter the arena.”[3]

The protestors likely sought out the Golden 1 Center for a variety of reasons. The NBA has historically been very successful handling social issues and allowing their players to do more than “shut up and dribble.”[4] In addition to this, there are generally people of means with influence and power to promote change within a community at professional sporting events, and the protestors would hope to garner their attention, along with the approximately fifteen thousand fans not able to enter the arena and needing to be reimbursed for their ticket purchases.[5] The protestors organized a similar demonstration on Tuesday, March 27th prior to the Sacramento Kings game against the Dallas Mavericks, with nearly an identical response from the Kings.[6]

Though Kings owner Vivek Ranadive has expressed support for the protestors, the question could be raised as to whether, generally, these types of protests are permitted on the premises of publically funded professional sports facilities under the First Amendment of the United States.

Nick DeSiato, writing for the Marquette Sports Law Review, has stated “The combination of privately owned professional sports clubs and publicly funded facilities creates a unique professional sports private-public hybrid that remains legally complex and largely unsettled amongst courts. Whereas purely public entities are subject to constitutional restrictions, purely private entities are most often not.”[7] When you combine two entities that are bound differently under the Constitutional Amendments of the United States, the end result rarely paints a clear picture. To determine the applicability of these restrictions, the courts must determine whether the nature of the professional sports club and their facilities is that of a state actor and whether the facility in question is a public forum.[8] Courts have primarily utilized three tests to make this determination, including: a Symbiotic Relationship Test, an Entwinement Test, and a Public Function Test.[9]

A Symbiotic Relationship is “present if the state has so far insinuated itself into a position of interdependence with a private (entity) that it must be recognized as a joint participant in the challenged activity.”[10] However, under this test, the courts have also stated that “extensive state regulation, the receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the government and a private entity that is required for state action.”[11] In the case of Ludtke v. Kuhn, Yankee Stadium was determined to be functioning as a state actor in a lawsuit brought against the New York Yankees due to the symbiotic relationship established through a “combination of a publicly funded stadium, the city’s upkeep of the stadium, and the correlation of the city’s profit from its lease and the Yankees gate attendance.”[12] This test is going to most heavily favor the party trying to establish that a professional sports club and its facility participated in state action.

A relationship between a private entity and a government agency is deemed to be “entwined” when a private entity’s “otherwise private conduct takes on a public character.”[13] However, no cases have ever used the Entwinement Test to determine if the private entities are state actors, as “most clubs tend to maintain exclusive title of their facility, (and) have nearly complete autonomy over the facility’s operations, free speech regulation, and in-facility security during games.”[14]

The Public Function Test essentially asks a court to determine whether an entity “performs a government function.”[15] Though this is typically interpreted and applied in a narrow fashion, it has been extended to sections of facilities, such as sidewalks. In the case of United Church of Christ v. Gateway Economic Development Corp., the court determined that the sidewalk outside of the Cleveland Indians stadium operated as a public function because there was nothing distinguishing the sidewalk from the surrounding sidewalks, and the baseball team played the role of a state actor by prohibiting protests on this particular sidewalk for seemingly no reason.[16] But since the single stretch of sidewalk was in question, not the facility as a whole, the only area that was deemed a public function was the sidewalk which the demonstrators were originally removed from.[17]

If the courts do not determine that the professional sports club or facilities have participated in state action, the test is satisfied and the private entity will not be subject to constitutional restrictions. If state action is found, the court next looks to determine if the venue, or at least a section of the venue, acts as a forum where free speech can or cannot be regulated.[18] This Public Forum Test has historically been applied more favorably to the entity attempting to remain a private entity, as “mere government ownership or control is not sufficient to create a public forum,” even at publically owned professional sports facilities. The three prongs to determine the regulation of speech on publically owned facilities include: the Traditional Public Forum, the Designated Public Forum, and the Non-Public Forum.[19] Under the first two prongs, “free speech may be restricted only by reasonable time, place, or manner regulations that serve a significant governmental interest and permit ample alternative channels for communication.”[20] In the Non-Public Forums, any restrictions to free speech must be “reasonable and content-neutral.”[21]

It is easy to see how many lines can become blurred in the legislative process of determining where the First Amendment of the United States does and does not apply to protests at publicly funded sports venues. In regards to the two demonstrations in Sacramento, Kings owner Vivek Ranadive has been supportive of both the protestors organizing the demonstrations and the players who have voiced their support to the protestors. As long as this is the case when demonstrations do occur at professional sporting events, it would appear that the owners and protestors can act harmoniously. However, with the second demonstration at the Golden 1 Center, the Sacramento Kings will have had to reimburse thirty thousand fans for tickets they have purchased and were subsequently unable to use and enjoy. Will it come to a point, should the demonstrations continue, where the team gets tired of reimbursing fifteen thousand tickets a night? That will certainly be a volatile situation to monitor in the coming nights when the Kings, and other NBA teams, are set to host basketball games in their arenas.








[8] Id.

[9] Id.


[11] Id.


[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

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