Denver Broncos Viewpoint Discrimination

My fellow Washingtonians it appears we may not we welcome at the Denver Broncos v. New England Patriots playoff game this coming weekend because of an unconstitutional policy violating free speech rights based upon viewpoint discrimination.

In sports a home field advantage is usually cherished.  The players are then able to play in front of a friendly crowd who supports and cheers them on. Ideally home field advantages are created by the sheer popularity of the home team buying up all the tickets.

The Denver Broncos football team is not taking that chance in their upcoming playoff game against the New England Patriots — even though they have secured a home field advantage through the playoffs, except if they make it to the Superbowl.  The mile high football team is placing geographical restrictions on ticket sales most likely to ensure the home field advantage continues for the Denver Broncos.

Sporting news organizations are reporting the Denver Broncos are only selling tickets to the AFC Conference Championship game to people who are located in a select group of surrounding states.  Even when I tried to look for tickets on Ticketmaster’s website the night of Jan. 20, 2016, I was greeted with the following disclaimer:

“Tickets will only be available to those with a billing address in the Rocky Mountain region including Colorado, New Mexico, Wyoming, Nebraska, Montana, South Dakota and Western Kansas.  Orders outside the restricted zip codes are subject to cancellation.”

Denver Broncos Tickets
Denver Broncos tickets screen grab from Jan. 20, 2016

This article will argue the ticket ban for individuals who do not have a billing address in one of the surrounding states is an unconstitutional restriction on protected speech — the right to cheer for whatever team you want.

Background facts

The Denver Broncos are owned by the Pat Bowlen Trust, a private organization.1  But this private owned football team plays on a field substantially paid for by taxpayers, on land owned and operated by a consortium of seven counties in the Denver metropolitan area called the Metropolitan Football Stadium District (“MFSD”).2

According to the state law and the lease signed between MFSD and the Denver Broncos, MFSD contracted to pay 75 percent with the Denver Broncos paying the remaining 25%.3 Later some of those costs to both parties were subsidized by stadium naming rights, but I think it is a fair statement to say the taxpayers paid for a majority of the stadium initial costs.

Not only did the state pay a substantial amount for the stadium, but it also owns and leases for a set period of time the stadium to the Denver Broncos.4 The Denver Broncos are responsible for the stadium management during the time of the lease.5 Even though the Broncos manage the stadium, they cannot do whatever they wish with the stadium during the leased period. Under the lease MFSD has the right to approve all non-football related activities at the stadium and “[t]he District shall give immediate notice to PDB [Denver Broncos] of its disapproval of any proposed or scheduled event.”6 The Denver Broncos pay annual rent to the MFSD for use of the stadium.7 The Denver Broncos pay a percentage of parking revenues to be paid to the MFSD in quarterly installments (even from Denver Broncos football games).8 MFSD recieves one suite “including tickets to NFL games” at no cost to the MFSD.9

There is no question that there is government entanglement in the stadium ownership, management and policies between the publicly run and operated MSFD and the private owned and operated Denver Broncos.

State law implications

But what does that mean constitutionally (under the U.S. Constitution)?  The Denver Broncos are a private organization.  And it could be argued that while there is government entanglement (for the reasons stated above) a Denver Broncos football game is a private event (a private forum) not entitled to any constitutional protections.

I think that argument would have some traction except for the fact state law requires a set amount of tickets for each Denver Broncos game must be available to the general public.

The lease agreement shall include: “a provision requiring the franchise to guarantee that two thousand tickets for each game held at the stadium are available for sale to the general public.” Colo. Rev. Stat. § 32-15-122(1)(f).

Interestingly, the state law does not make a distinction between games.  The law clearly states that two thousand tickets will be made available to the general public “for each game.” There is no clarification if it is a pre-season, regular season, or post-season game.  The tickets shall be made available to the general public.

The Lease Agreement does have a corresponding clause setting aside two thousand tickets for the general public, but only for “each pre-season and regular season game.”10  I would imagine the Denver Broncos could argue that at least according to the lease post-season games should be treated differently.  And since the upcoming Denver Broncos v. the New England Patriots is a playoff game, it should be treated differently.  I doubt a court would give this argument serious thought.  The Lease Agreement is bound by Colorado Law (expressly stated in the document), and contracts cannot violate public policy.  The state law is controlling.

Public forum analysis

The fact that state law mandates a set number of tickets are set aside for the general public each game, is a strong basis that Denver Broncos games are public forums.

“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”11

Here the event is privately managed (by the Denver Broncos).  Under the Lease Agreement the Denver Broncos as stadium managers are entitled to “planning, supervision and conduct of the day-to-day management of the Leased Premises.”12 I think a strong argument can be made by making a set amount of tickets available each game, it is effectively opening a nontraditional forum for public discourse.

The state statute does not define general public.  Nowhere does it say or even implicate the general public means individuals from: Colorado, New Mexico, Wyoming, Nebraska, Montana, South Dakota and Western Kansas.

When a word is not defined by the Colorado Legislature the rules of statutory construction instruct us to read words and phrases “in context and construed according to the rules of grammar and common usage.”  I do not believe I have ever heard of the general public being referred to as individuals with billing addresses in mountain west states.  The common usage of the term general public would mean any individual, regardless of where their billing address is.

Thus this is likely a public forum placing it squarely within the realm of constitutional law.

Viewpoint Discrimination

I think it is undeniable that excluding individuals from purchasing tickets who do not have a billing address in a mountain west state is discriminatory.

The question is whether the discrimination is based upon the government’s viewpoint or not. Viewpoint discrimination “is presumed impermissible when directed against speech otherwise within the forum’s limitations.”13

There is clear disparate treatment between an individual who wishes to purchase a ticket to the game with a billing address in Cheyenne, Wyoming and a person in Seattle, Washington.  Yeah, even Seattleites will not be permitted to purchase tickets to the game. But while disparate treatment does exist here, it does not involve speech.

The disparate impact of the ticket purchasing rule strongly implicates fan speech, and discriminates against those who would want to cheer for the New England Patriots.  Using the laws of common sense there are likely to be more Patriots fans in New England than in the Mountain West and barring them from the game would most likely eliminate the viewpoint from the game that the Patriots should win.

Some circumstantial evidence of this discriminatory motive is illustrated in a column in the Denver Post last week.  “The home-field advantage … is being undermined by traitors who live next door to you in Broncos Country.”14 The columnist argues that support (or lack thereof) of support for the home team in the stands can affect player morale.  Somehow the article attributes home field advantage to three points for the home team — I am not sure how that math works out.  Regardless, it is likely the columnist for the Denver Post is thinking along the same lines as the person in charge of the Denver Broncos ticketing policy. 

The more pro Denver Broncos speech and expression in the stands can only help the team on the field.  The cost of maximizing pro Denver Broncos speech and expression comes at the cost of limiting or eliminating New England Patriots speech. 

Going back for a minute to the laws of common sense the closer one’s billing address is to Denver the more likely that fan will use more pro Broncos speech and expression.  Which in turn creates an impermissible viewpoint discrimination by the government because the Colorado Legislature opened up what would otherwise be a private forum into a public forum by requiring a certain number of tickets each game available to the general public.

Some Thoughts

It is probably best to remember the United States Supreme Court’s words: freedom of speech “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public” Associated Press v. United States, 326 US 1, 20 (1945).  Even though, it can be a bummer to sit next to a fan from the opposite team, our society is built upon “diverse and antagonistic sources.”

Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. David Migoya, Who’ll be given the reins of Broncos ownership?, Denver Post, Sept. 21, 2014, available at: http://www.denverpost.com/broncos/ci_26575449/wholl-be-given-reins-broncos-ownership.
  2. Any any further question about whether the MSFD is a public or private organization can be answered by, Colo. Rev. Stat. §32-15-401 as it states the MFSD is a “political subdivision of the state” with “[e]ach of the directors, officers, and employees of the district shall be a public employee for purposes of the ‘Colorado Governmental Immunity Act.'” It is clear the state intended the MFSD to be a governmental organization.
  3. Colo. Rev. Stat. § 32-15-106(1)(c); Lease Agreement By And Between Metropolitan Football Stadium District and PBD Sports, LTD and Stadium Management Company, LLC, dated Sept. 03, 1998, Art. 3 at 2, available at: http://mfsd.com.64-150-188-63.greatriverhost.com/wp-content/uploads/2015/01/Lease_and_Management_Agreement_With_Broncos.pdf.
  4. Lease Agreement, Art. 4.1 at 3.
  5. Lease Agreement, Article 20.2 at 26.
  6. Lease Agreement, Art. 7.2 at 8.
  7. Lease Agreement, Art. 11 at 14.
  8. Lease Agreement, Art. 12 at 14.
  9. Lease Agreement, Art. 13 at 15.
  10. Lease Agreement, Art. 31 at 45.
  11. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 802 (1985).
  12. Lease Agreement, Art. 20.1(a) at 22.
  13. Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819, 830 (1995).
  14. Mike Kiszla, There are traitors in Broncos Country, selling tickets to Steelers fans, Denver Post, Jan. 12, 2016, available at: http://www.denverpost.com/kiszla/ci_29377580/kiszla-there-are-traitors-broncos-country-selling-tickets.

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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