Intercollegiate Athletic Corporate Sponsorships and the First Amendment:
In response to the recent escalation of head coaches’ salaries in intercollegiate athletics, and the constant pressure for athletic directors to adhere to shrinking budgets, many athletic directors are turning to corporate sponsorships to increase revenue. Athletic departments can raise money from corporate sponsors in a variety of methods ranging from selling advertising on the outfield fence of the baseball stadium to allowing corporate sponsors to set up an information booth and distribute advertisements on the concourse in the basketball arena. While an athletic director may be eager to welcome with open arms corporate sponsors with open checkbooks, an athletic director may at times be placed in a situation where he or she does not want to allow a corporate sponsorship to a company or organization that could portray a negative image on the athletic department or the university. For example, an athletic director may decide to decline an offer from Hooters, or a local “gentlemen’s club” to become a corporate sponsor for fear that it will negatively impact the family atmosphere and image the athletic department would like to portray. However, an Athletic Director at a state institution must be aware that providing sponsorship opportunities to certain companies while refusing sponsorship opportunities to others could implicate the right to free speech under the First Amendment. This article will attempt to provide an Athletic Director with information regarding lawful distinctions between corporate sponsors in order to avoid infringing on the First Amendment rights of the members of a corporation who are seeking to become a corporate sponsor for a state institution’s athletic department.
From the outset, it must be noted that this article only applies to state institutions because the First Amendment is not implicated with regard to private institutions. Thus, if a private religious university such as Brigham Young University refuses to allow Budweiser or Coors to become corporate sponsors (since alcohol consumption is contrary to the religious beliefs supported by B.Y.U.), it can lawfully decline such a corporate sponsor without any possible First Amendment implications.
The first step in analyzing a freedom of speech problem such as whether the athletics department can constitutionally deny a corporate sponsor an opportunity to engage in athletic department promotions is to determine the type of forum in which the intended speech is to take place. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985). The 9 th Circuit in Diloreto noted that “where the government acts in a proprietary capacity to raise money or to facilitate the conduct of its internal business, the Supreme Court generally has found a nonpublic forum, subject only to the requirements of reasonableness and viewpoint neutrality.” Diloreto v. Downey Unified School Dist. Bd. of Educ , 196 F.3d 958 (9 th Circuit, 1999), citing Lehman v. City of Shaker Heights, 418 U.S. 298, 303-304 (1974). The Diloreto court held that where a high school offered advertising opportunities to businesses allowing the business to post an advertisement on a sign at the high school baseball field, and where the intent of the school in opening the baseball field to advertising was to raise funds, not to create a forum for unlimited public expression, the forum was a nonpublic forum open for a limited purpose. Id. at 966.
When an athletic department offers corporate sponsorships, it is clearly doing so to raise funds for the athletics department, not to create a forum for unlimited public expression. Thus, when an athletic department solicits and receives a corporate sponsorship such as for the signage at the athletic field or arena, the forum that has been created will likely be found to be a nonpublic forum open for a limited purpose.
In a nonpublic forum open for a limited purpose, restrictions on access “can be based on subject matter…so long as the distinctions drawn are reasonable in light of the purpose served by the forum” and as long as the restrictions discriminate on the basis of content rather than viewpoint. See Id.; Rosenberger, 515 U.S. at 829 (1995); Lamb’s Chapel, 508 U.S. at 392-93 (1993); Cornelius at 806. Thus, before denying an opportunity to a corporate sponsor, an athletic director must ensure that the he or she is making a reasonable distinction based on the purpose of the sponsorship opportunities it is offering, as well as ensuring that he or she is not making a distinction between two corporate sponsors on the basis of a corporation’s viewpoint.
Making a Reasonable Distinction
In Lehman, the U.S. Supreme Court addressed the issue of whether it was reasonable for a city transit system to decide which type of advertising may be displayed in its buses; an issue that arose when a political candidate was not allowed to advertise on the city buses. Lehman at 298. The Lehman court held that the city’s decision to exclude political advertising from bus signs was reasonable given the city’s desire to generate revenue and the potential for “ lurking doubts about favoritism, and sticky administrative problems [that] might arise in parceling out limited space to eager politicians.” Id. at 304.
An athletic director’s reason to decline offers from corporate sponsors such as Hooters or a local “gentlemen’s club” may be to keep a family oriented atmosphere at its games, and maintain an environment that is suitable for children. It is likely that making a distinction between a corporate sponsor such as Hooters and a corporate sponsor such as Ford or Coke based on the atmosphere that the corporate sponsor may create would be seen as a reasonable distinction.
Viewpoint Versus Content Discrimination
However, even assuming that an athletics department’s reason to deny a sponsorship opportunity to a certain corporation is reasonable, it may still violate the First Amendment if doing so discriminates on the basis of viewpoint, rather than content. Diloreto at 969, citing Cornelius at 811.
The U.S. Supreme Court noted that the distinction between viewpoint discrimination and content discrimination is not a precise one. Rosenberger at 831. The Diloreto court attempted to explain the distinction when it stated, “ Permissible content-based restrictions exclude speech based on topic, such as politics or religion, regardless of the particular stand the speaker takes on the topic.” Diloreto at 969, citing Children of the Rosary, 154 F.3d at 981. The Diloreto court further stated, “In contrast, impermissible viewpoint discrimination is a form of content discrimination in which the government targets not subject matter, but particular views taken by speakers on a subject.” Id. citingRosenberger at 829.
In Diloreto, a businessman was not allowed to buy advertising space at the high school baseball field because his proposed sign listed the text of the Ten Commandments, which was against the school’s policy of not allowing religious advertising. Id. at 962. The school district refused to post the sign “based on (1) concern about running afoul of the Establishment Clause; and (2) disruption, controversy and expensive litigation that might arise from community members seeking to remove the sign or from religious or political statements that others might wish to post.” Id. at 963. The Diloreto court stated, “We conclude that the District’s decision not to post Mr. DiLoreto’s sign was pursuant to a permissible, content-based limitation on the forum, and not viewpoint discrimination.”
If an athletic director allows corporate sponsors that promote a family environment to engage in sponsorships, while he or she refuses to allow corporate sponsors that promote an adult oriented environment to engage in the same sponsorships, the athletic director would likely be seen to be engaging in permissible content discrimination rather than viewpoint discrimination. By way of example, the athletics department would not be allowed to refuse to allow Hooters to be a corporate sponsor, while at the same time allow another adult oriented business such as a local “gentlemen’s club” to be a corporate sponsor because doing so would be deciphering between two different businesses that are adult oriented, which would likely be seen as viewpoint discrimination because the decision to exclude Hooters instead of the local “gentlemen’s club” would appear to be based on the particular views or specific stance Hooters takes. Similarly, an athletic director could not allow certain religious organizations such as the local Baptist Church to become a corporate sponsor while refusing to allow other organizations such as an atheist group to become a corporate sponsor because doing so would likely be seen as impermissible viewpoint discrimination.
However, the Diloreto case offers support for an athletic director to refuse to allow a religious organization or an adult oriented business to become corporate sponsors so long as the athletic director refuses to allow all religious organizations and adult oriented businesses to become corporate sponsors because doing so would likely be viewed as permissible content discrimination rather than impermissible viewpoint discrimination.
Therefore, since an athletic department, through its corporate sponsorships has likely created a nonpublic forum open for a limited purpose, if the distinction the athletic director is making between different corporations is a reasonable distinction that does not amount to viewpoint discrimination, it is likely that the athletic director’s actions of refusing to allow such a corporation to be one of its corporate sponsors would be found to be constitutional.