Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”     Thomas Paine,    Dissertation on First Principles of Government

August 2, 2006

Stadium Searches

by Brad Warbiany

If I wish to pat you down before entering my home, to ensure you’re not carrying a weapon, it’s my property, and I have a right to do so (and you have a choice to consent to a search, or leave). If I own a store, and you have a backpack with you, I have a right to know what’s in that backpack before you enter, or you can refuse to consent to a search (and thus I turn you away).

But at some point, a judge has decided that the NFL, as the governing body of professional football, doesn’t have the same property rights with the stadiums its games are played in:

A federal judge has upheld a ban on security pat-downs outside Raymond James Stadium before Tampa Bay Buccaneers games, ruling Friday the practice violates the constitutional rights of fans.

“A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protection envisioned by our Founding Fathers,” U.S. District Judge James Whittemore wrote in his 26-page order. “Our Constitution requires more.”

The ruling is a victory for Valrico civics teacher Gordon Johnston, 60, a Bucs season ticket-holder who filed suit against the Tampa Sports Authority in October 2005.

I can see some potential reasons why the judge would find this way. First, Raymond James stadium was partially taxpayer-funded, so under one reading, the government has a role in its policies and thus this is a government infringement on the Fourth Amendment. Another potential reason is that the Tampa Sports Authority, which administers the stadium’s operations, is a government agency, and thus this is government infringement on the Fourth Amendment. Since the suit was brought directly against the Tampa Sports Authority, this is where I think the reasoning must have come (having not read the ruling myself).

But I think both arguments fail due to one crucial fact. It is not the government who is setting these policies or ensuring their compliance. It is the NFL. The NFL, as the governing body of a VOLUNTARY league, have decided that their fans might feel more secure in a stadium if fellow fans are searched before they are allowed to enter the stadium. This is the NFL’s decision, not the government’s.

That being said, I think it’s a stupid decision. Given the ineffectiveness of the “search” they perform, it’s nothing more than an annoyance. It will take very little ingenuity to smuggle something past this “search”. In fact, I think it’s much more likely that the real result of this policy will be to find contraband (such as outside food and drinks), not to actually improve the safety of fans.

But I realize that it’s my choice to attend an NFL football game, and that should I determine that I want to enter the NFL’s stadium and view the game, I might have to submit to the policies that they have set. Anything else is a violation of the NFL’s right to set the conditions under which their games are played.

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8 Comments

  1. Do you think you have to know why the search, and just how far would you let they search?

    Comment by VRB — August 2, 2006 @ 2:50 pm
  2. Brad, I’m not with you on this one. The stadium is NOT private property. It’s not owned by the NFL if taxpayer money was used and it is administered by a government agency. To me this is no different, in kind, from the searches conducted in NYC of people entering the subway system.

    It fails both the Constitutional test and the effectiveness test. Whether we are talking about a consequentialist position or a position of principle, the court was right and the Tampa Sports Authority was wrong.

    That said, if a fan is uncomfortable because other fans aren’t searched, then they have the option to not attend a game.

    Comment by Eric — August 2, 2006 @ 3:48 pm
  3. VRB,

    I think I do, yes. And if I’m not satisfied with the explanation, I don’t have to enter the stadium.

    Eric,

    I understand the argument, but I’m not sure I can buy it. I worry that it goes a little too far down the slope. Government money is in everything these days. Does that mean they have the right to regulate every little thing? If that’s the position taken, it (and we can agree on this) only further underscores the need to keep government out of our financial affairs. But I’m not sure that this is quite analogous to the NYC subway.

    I think about it this way. Let’s say that I am looking to rent out the Purdue University concert hall for a heavy metal concert. I determine that to police potential drug use inside the concert hall, I am going to frisk attendees. Am I violating their Fourth Amendment rights because I’m on land owned by the University (and thus paid for by the State of Indiana)? The land was paid for by the public, and administered by a public university, but I am holding a private event renting their grounds.

    Comment by Brad Warbiany — August 2, 2006 @ 4:28 pm
  4. Brad, your example doesn’t work. The searches are not being administered by the NFL (which is a government sponsored monopoly, by the way, so that creates an entirely separate issue), they are being administered by a government agency in a facility owned by the government.

    In your example, btw, if the government doesn’t agree that you can frisk the attendees, I don’t see how you could, since it’s their property, not yours.

    I don’t disagree that you should be able to impose requirements you like on your own private property. But your examples don’t deal with private property. Take a look at who owns most stadiums. Almost always it is the city or county, not the sports franchise.

    Comment by Eric — August 2, 2006 @ 9:00 pm
  5. So I think we have raised this question: when you rent a public facility, does the government in a sense temporarily turn over the facilities property rights to you for the duration of the event you are hosting? I think I would have to side with Brad, especially if you were paying to rent the facility and say that you have a right to do what you want at your event.

    As far as the NFL thing goes, I was originally going to side with Brad, but if Eric is right in saying the government is issuing the searches, I may have to side with him.

    Comment by Ryan — August 2, 2006 @ 9:14 pm
  6. According to the article and what Brad wrote, it is a government agency, not the NFL team.

    Comment by Eric — August 3, 2006 @ 3:48 am
  7. Eric,

    I can see your point. While perhaps any individual reason brought up (land paid for by the public, the fact that the search is conducted by the Tampa Sports Authority, and the fact that the NFL is basically a government-licensed monopoly) might not be enough to pass the test of it being government doing this, when you put them all together it’s enough.

    I think it might still be a gray area, but the judge’s decision may not be as ridiculous as I implied in my post.

    Comment by Brad Warbiany — August 3, 2006 @ 5:11 am
  8. As far as the rental question goes, in general state rental laws give the rentor some rights that are similar to property rights. I am not an attorney, so don’t take this as gospel. I believe that the owner could impose restrictions on any rights not granted by law in the lease contract.

    Comment by Eric — August 3, 2006 @ 7:53 am

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