Silencing the Sidelines: Can Policies Protect Athletes from Harassment Without Suppressing Free Expression?

By: Abbey Block

With the new football season just around the corner, sports fans are donning their jerseys, checking the stats, and dialing in to watch their favorite athletes take the field. While the beginning of a new season is a time filled with excitement and anticipation, for many athletes – both professional and collegiate – it will also be the beginning of a season of harassment.

Taunts, demands for money, and even death threats: college and professional athletes across all categories of sports are increasingly facing harassment from the public. By way of example, professional golfer Max Homa has discussed the barrage of Venmo requests and direct messages he’s received from unhappy (and some very angry) sports bettors, blaming him for their losses. One Venmo request for $1,900 included the caption, “Bc you can’t putt under pressure.”

But the online harassment goes far beyond mere annoyance. Baseball player Nathaniel Lowe of the Washington Nationals told the Washington Post that he regularly receives messages online from individuals telling him that he should kill himself. And in 2021, a prominent gambler named Benjamin “Parlay” Patz pled guilty to transmitting threats after investigators linked him to more than 300 threatening messages sent to the social media accounts of professional and collegiate athletes, saying, for example, “I will sever your neck open” and “I will kill your entire family.”

While most athletes are undoubtedly accustomed to a modest amount of public criticism, the ubiquitous presence of social media has only exacerbated the problem – offering tools for harassment and heckling to a sore loser’s fingertips. According to a study conducted by the  NCAA, one in three “high-profile” student athletes reported receiving abusive messages from individuals with a betting interest, with ninety percent of harassment being generated online or through social media.

While correlation does not amount to causation, many suspect that that the growth of legalized sports betting, combined with the accessibility offered by social media, has created a perfect storm.  Now, more than ever, unhappy sports bettors can loudly voice their displeasure directly to athletes they’re betting on – from behind the protection of their phone screen, in the comfort of their own home, and with a large degree of anonymity.

Everyone can agree that athletes – and student athletes especially – should not be forced to deal with harassment as a condition of their gameplay. And while the First Amendment protects “free speech,” its reach is not unlimited.  Rather, the First Amendment’s protections explicitly exclude certain categories of speech from its protective umbrella, such as defamation, “true threats” or “fighting words.” By way of example, in the quintessential “fighting words” case, Chaplinsky v. New Hampshire, the Supreme Court held that the defendant could not rely on the protections of the First Amendment to defeat his conviction for calling a police officer a “damned fascist” on a public sidewalk.[1] In Chaplinsky, the Court rejected the defendant’s argument that his conviction was a violation of the First Amendment, explaining that the purpose of the statute under which he had been convicted was “narrowly drawn” to prohibit “the use in a public place of words likely to cause a breach of the peace.”[2] Upholding the conviction, the Court concluded that the words the defendant has used  were “epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”[3] Thus, under Chaplinsky (and later Supreme Court precedent[4]), you’re free to curse at a police officer and call him or her names, but can face legal consequences for disturbing the peace or saying words that are “likely to cause violence.”[5]

But even with these guiding principles, creating rules and regulations to punish verbal and online harassment requires regulators and lawmakers to engage in a careful threading of the needle – balancing the need for protection against the First Amendment’s broad and protective umbrella. This task can be particularly challenging given that the First Amendment does, in fact, protect a significant amount of speech that is emotionally distressing or downright distasteful.

The Third Circuit wrestled with this conundrum in, United States v. Yung, when it considered the constitutionality of a cyber-stalking law, which criminalized, in pertinent part,  (1) the use of mail, interactive computer service, or an electronic communication device; (2) with the “intent to kill, harass, intimidate, or place under surveillance” another person, (3) in a manner that is reasonably expected to or results in “substantial emotional distress.”[6] The Court recognized that the law presented the risk of criminalizing broad swaths of speech, given that it targeted common vehicles for speech such as “email, texts and social media posts” and did not impose an objective standard with regard to the “substantial emotional distress element.”[7]

Although the Court narrowly upheld the statute as constitutional because of its intent element, the Third Circuit nevertheless provided clear instruction concerning the reach of the First Amendment:

The First Amendment protects lots of speech that is substantially emotionally distressing. Protestors may picket a marine’s funeral with signs  like “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.” Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). And a pornographer may parody a famous minister as having drunken sex with his mother. Hustler Mag. v. Falwell, 485 U.S. 46, 47–48, 51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). These statements are deeply offensive, yet still covered by the First Amendment.[8]

Although the Third Circuit’s discussion in Yung illustrates how challenging it can be to appropriately regulate cyber-speech, regulators, lawmakers, and sports betting operators continue to search for creative solutions. In most states, sports betting is considered a “privilege” and not a right, thereby providing regulators with greater latitude in the restrictions they can impose. For example, Ohio legislators included a provision in the approved Ohio 2024-2025 fiscal year budget to allow state regulators the authority to permanently ban or place sports bettors on an exclusion list if they’re found to be harassing or threatening student-athletes over a sporting event. Thus, although the law doesn’t enforce any kind of criminal or civil penalty, it nevertheless imposes consequences for the harasser’s bad behavior. In West Virginia, the Lottery Commission may ban individuals from sports betting if it determines they have “engaged in a pattern of conduct of harassing a sports official, coach, or any participants.”

In an effort to stimy the harassment, organizations such as the NCAA have endorsed banning player-specific proposition – “prop” – bets on collegiate players, arguing that these types of bets leave young college athletes particularly vulnerable to abuse. A few states such as Ohio, Maryland, and Vermont have implemented the restriction. While helpful in theory, this measure (1) does not offer any degree of protection to professional athletes; (2) does not punish or prevent the actual harassment – which could just as easily arise from other forms of betting; and (3) may ultimately drive normal (non-harassing) patrons to unregulated markets and platforms.

At least one sports betting platform has taken matters into its own hands – implementing policies that allow for the termination or suspension of a patron’s account when the patron is found to have engaged in harassment. FanDuel banned the account of a bettor who posted a video of himself harassing Olympic Gold Medalist, Gabby Thomas at a recent track event, bragging that he had “made Gabby lose by heckling her,” which had, in turn “made [his] parlay win.” The platform also updated its Terms of Service to explicitly address and prohibit the harassment of athletes, allowing the platform in its “sole discretion, to suspend or terminate” a patron’s account if it determines that the patron “pose[s] a threat to the safety of participants in a sporting event or discover that [the patron] engaged in the harassment of a sports official, coach, or any participant in a sporting event.”

It is evident that there is no perfect solution in the fight against the harassment of collegiate and professional athletes. All types of abhorrent speech are protected under the First Amendment, which means lawmakers must focus their power of regulation on action – i.e., an intent to act in a manner that intimidates or causes harm – rather than the harmful words themselves. Carefully crafted policies must allow for distinction between an energetic fan “booing” in the stands during the other school’s foul shots, and an angry gambler sending threats and nasty comments when his parlay doesn’t play out in the way he had hoped. Striking a balance between fan expression and athlete safety is essential to preserving both the integrity of sports and the well-being of those who play them.

[1] 315 U.S. 568, 569 (1942).

[2] Id. at 574.

[3] Id.

[4] See, e.g., City of Houston v. Hill, 482 U.S. 451, 459 (1987) (opining that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”)

[5] Chaplinsky, 315 U.S. at 573.

[6] 37 F.4th 70 (3d Cir. 2022).

[7] Id. at 77.

[8] Id.