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Unofficial Opinion 96-13

Unofficial Opinion 96-13

August 8, 1996
To: 

Senator
District 37

Re: 

ACOG's condition-of-entry rule prohibiting spectators from carrying small flags "other than those of participating countries" is questionable under the Constitution.

This is in response to your request for an opinion concerning published reports that the Georgia state flag is being "banned" by the Atlanta Committee for the Olympic Games ("ACOG") at Olympic venues, some of which are on state property. First, let me point out that the restrictions in question apply to spectator conduct. To my knowledge, the Georgia state flag, along with the United States flag, will be flown during the Olympics from existing flagpoles at any state facility whose custom and practice it is to fly those flags.

To clarify the nature of the actual restriction, attached is a copy of the "spectator rules" which appear in an ACOG informational brochure and apparently are reprinted on the back of tickets to Olympic events. Item (6) states:

The following is a partial list of prohibited items and activities: . . . banners, large flags, flags other than those of participating countries . . . .

Under the rules, a spectator consents to inspection for prohibited items; persons refusing inspection may be denied entry. ACOG reserves the right to refuse admission or eject a spectator who fails to comply with the rules [See Item (7)].

Based upon my understanding of ACOG's position, spectators may not possess, as a condition of entry into the venues, any "large flag" (my staff was informed by counsel for ACOG that this means any flag of such size that it would obstruct another's view). ACOG will allow possession of smaller, hand-held flags of "participating countries." Therefore, both a standard-size United States or State of Georgia flag are "prohibited items" for spectators in the venues. Small or hand-held United States or other "participating country" flags are allowed, but hand-held flags of individual states (for example, Ohio), provinces (for example, Quebec), regions (for example, Chechnya) and non-participating countries are "prohibited items." My staff has been further informed by ACOG's counsel that this limitation is a "long-standing" one; that ACOG is required to comply with "clean venue" requirements of the Olympic Charter and By-Laws; that the allowance of small flags is a narrow exception to these requirements. (However, I have generally understood "clean venue" to relate to commercial advertising and banners.) At this time I do not know ACOG's official position on whether the prohibitions would extend to representations of "prohibited" flags on clothing, jewelry and other personal items, and the words of the rule, itself, would indicate that only actual "flags" are prohibited.

Constitutional analysis is extremely fact sensitive. Without full knowledge of all the facts, and given the short amount of time available to determine those facts, it is not possible for me to provide a definitive response to your inquiry. However, some of the relevant legal principles are discussed below to illustrate the type of considerations which must be taken into account.

The Constitution is implicated by flag restrictions because expressive conduct involving flags is a form of protected "speech" under the First Amendment. {1} A number of factual circumstances would have to be examined in order to make the legal determination that the actions of ACOG, a private entity, can rise to a constitutional violation under "state action."{2} Among these is the fact that ACOG has been given "exclusive use" of venue sites on state property, through lease and license agreements with state entities, including the right to restrict access to, control entry and exit, and exercise of operational control over the property while it is a venue site.

Even if "state action" were found to be present, further legal analysis would be required to determine whether a particular venue site is a "public forum" for constitutionally protected speech. There are judicial cases on both sides of this issue, as it relates to stadiums and coliseums,{3} and the analysis is complicated by ACOG's status as a private lessee with exclusive use rights during certain periods. If a court were to rule that some venues or portions of venues are a "public forum," content-neutral, time, place, and manner restrictions would be authorized; in a non-public forum, the test is less stringent--reasonable and viewpoint-neutral restrictions are allowed. {4}

The term "content-neutral" means that the restriction is "justified without reference to the content of the regulated {5}speech." The principal inquiry is whether the regulator has adopted a regulation because of agreement or disagreement with

{6}the message it conveys. ACOG's rationale for the small flag limitation to "participating countries" has not been stated to me. If the basis for allowing or disallowing a flag is strictly its size or whether a country is fielding an Olympic team, regardless of whether ACOG agrees with the "message" of the flag, the limitation may not be content-based. If the flag restriction is based on the possibility of a hostile reaction by the other spectators to the message of a flag, however, the limitation is more likely to be considered a content-based restriction. {7} A content-based restriction is presumptively invalid and will be upheld only if a compelling state interest can be shown and the regulation is narrowly drawn to achieve that end. {8}

In the final analysis, the rule may be permissible only if ACOG can show either that there is no "state action" or that the rule is neither content nor viewpoint-based. Since the restriction applies literally only to "flags," a factor which may weigh in favor of its validity is that alternative channels exist for "flag message" communication by spectators, through reproductions of flags on clothing, jewelry or personal items, which are not "flags." {9}

Given the various contractual relationships between ACOG and state entities, the fact that a number of venues are located on state-owned property which, under ordinary circumstances, might be considered to have some of the qualities of a public forum, and given the preeminence of First Amendment rights in the law, enforcement of the restriction by ACOG is questionable. This would be particularly so in the absence of a content-neutral rationale.

Whatever the rationale or justification for the "participating country" flag restriction in the condition-of-entry rules, it is my advice that neither state personnel nor resources should be used to enforce such a restriction. By copies of this opinion, I am so informing the State Olympic Law Enforcement Command (SOLEC).

Prepared by:

RAY O. LERER

Senior Assistant Attorney General


APPENDIX

THE ATLANTA COMMITTEE FOR THE OLYMPIC GAMES

1996 OLYMPIC GAMES SPECTATOR RULES

(1) SPECTATORS ASSUME ALL RISKS AND DANGER INCIDENTAL TO THE EVENT, whether occurring prior to, during or after the event, including, among other things, injuries caused by other Spectators. Spectators assume all risks of property loss. (2) This ticket is a personal license and may not be resold or transferred. Persons selling or reselling tickets in violation of law are subject to arrest and prosecution. Ticket prices include all applicable taxes and are subject to a $15 nonrefundable order processing fee. The license granted by this ticket may be terminated, without cause, by refunding the face value of the ticket. (3) Tickets obtained from unofficial sources may be lost, stolen or counterfeit and may not be honored for admission. All Spectators, regardless of age, must have a ticket. Atlanta Committee for the Olympic Games, Inc. ("ACOG") is not responsible for lost, stolen, forgotten, defaced or destroyed tickets. No replacement tickets will be issued. (4) Spectators grant the International Olympic Committee, ACOG, and third parties authorized by them, permission to use photographs, film, tape or other images or likenesses of Spectators without compensation. Images of the Olympic Games obtained by Spectators with cameras, video and/or audio devices or other means cannot be used for broadcast, publication or any commercial purposes under any circumstances. (5) This ticket may not be used for political, advertising or other promotional purposes (including prizes, contests or sweepstakes not licensed by ACOG). Spectators may not solicit contributions or distribute literature on the premises, or wear or bring political, advertising or other promotional items into the venue. (6) The following is a partial list of prohibited items and activities: broadcast through the use of cellular phones or other transmitting devices, bottles, cans, coolers, ice-chests, food and beverages brought into the venue, weapons, fireworks, illegal drugs, horn, poles, banners, large flags, flags other than those of participating countries, animals of any kind (except service animals), signage of any nature, balls and frisbees. All Spectators consent to inspection for prohibited items. Persons refusing inspection may be denied entry and ticket prices will not be refunded. No storage is available at venues. No smoking, strollers, flash photography or lighting devices at venues. (7) ACOG reserves the right to refuse admission or eject any Spectator who fails to comply with these rules or is disruptive to the session or the enjoyment, comfort or safety of other Spectators; ticket prices will not be refunded. No readmission or pass-outs will be allowed.

POSTPONEMENT, CANCELLATION AND EXCHANGE POLICY

All session dates, times and descriptions are subject to change. If, prior to commencement, a session is cancelled or postponed to a later date, Spectators may exchange tickets in person for tickets to any subsequent sport or Olympic Arts Festival session, for equal or lesser face value, subject to availability. No refunds are allowed. There will be no refunds or exchanges if a session is cancelled or postponed after it has commenced or if a session description or participants change.

TRANSPORTATION INFORMATION

A portion of the purchase price of this ticket is for transportation on MARTA and the Olympic Transportation System, for the 17 - day period from July 19, 1996 through August 4, 1996, on the day of the session, to venues in the Atlanta area. There will be no ACOG - provided Spectator transportation furnished between Atlanta and within the following cities and areas: Lake Lanier (rowing/canoeing), Columbus (softball), Ocoee (kayaking/canoeing), Athens (football/gymnastics/volleyball), Savannah (yachting) or the satellite soccer cities. No smoking, eating or drinking will be permitted on any transportation vehicle.

Spectators agree to abide by all other rules and safety regulations which may be posted at the venue or on the Olympic Transportation System.


{1} Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); see United States v. O'Brien, 391 U.S. 367 (1968) (draft card burning). {2} For a review of the various "state action tests," see Lebron v. National R.R. Passenger Corp., 130 L. Ed. 2d 902, 930 (1995) (O'Connor, J., dissenting). For their application in an Olympic context, see San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987). {3} Stewart v. District of Columbia Armory Bd., 789 F. Supp. 402 (D.D.C. 1992); Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985); Calash v. City of Bridgeport, 788 F.2d 80 (2d Cir. 1986); Hubbard Broadcasting, Inc. v. Metropolitan Sports Facilities Comm'n, 797 F.2d 552 (8th Cir. 1986), cert. denied, 479 U.S. 986 (1986).

{4} International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).

{5} City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986), reh'g denied, 475 U.S. 1132 (1986). {6} Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

{7} Boos v. Barry, 485 U.S. 312, 321 (1988).

{8} Id.

{9} Ward v. Rock Against Racism, 491 U.S. 781, 802 (1989).