I watched the melee following the recent Ohio State Michigan game with mixed feelings. On the one hand, I thought it was kind of classless for the Michigan players to plant the Michigan flag at mid-field. On the other, if the OSU players didn't like it, just win the game. And the cops using pepper spray seemed seriously over the top to put it mildly. But by the time the day was over (and my team, Notre Dame had beaten USC) I put the whole incident behind me.
The same cannot be said for Republican Ohio Representative Josh Williams from Sylvania. He introduced a bill in the Ohio House, HB 700, called the O.H.I.O. Sportsmanship Act. Here's what the bill says:
"No person shall plant a flagpole with a flag attached to it in the center of the football field at Ohio Stadium of the Ohio State University on the day of a college football competition, whether before, during, or after the competition. Whoever violates this section is guilty of a felony of the fifth degree."
I want to emphasize that I am not making this up. A presumably small government Republican wants to make it a felony to plant a flag. This deserves some context. A fifth-degree felony carries with it a jail term of 6 – 12 months and up to $2500 in fines. Fifth degree felonies typically involve breaking and entering and theft over $1000. So, getting hit with a Felony-5 for planting a flag seems a little harsh in my estimation.
Also, the law doesn't exempt an OSU player. So, if the Buckeyes ever beat TTUN, and some OSU player gets excited and plants the Buckeye flag, he'd be off to the hoosegow presumably. Of course, good luck getting a Franklin County jury to convict.
I ran the proposed law by my friend Len Niehoff, a law professor at the University of Michigan. His comments are instructive: "it's important to note that the statute suffers from a flaw that reveals its deep and abiding silliness. Where is the 'center' of the football field? On the 50-yard line exactly halfway across? If that's the case, then the statute doesn't prohibit someone from planting a flag even one inch to the north, south, east, or west. And, if 'center' means something other than 'center,' then the statute is unconstitutionally vague. In other words, if the statute means what it says then it is pointless, and if it doesn't mean what it says then it is invalid. A law that poses two bad alternatives is a bad law." Hear, hear.
And from a policy perspective, do we really want to criminalize conduct that annoys us? If so, can I make taking too long in the line at Starbucks at least a misdemeanor?
Oh, and by the way, the Act probably violates the First Amendment. Planting a flag out of triumph or out of spite is expressive conduct. A law designed to curb that conduct runs afoul of the free speech guarantee in the U.S. and Ohio Constitution. I know Rep. Williams would say his bill is merely a regulation on time, place and manner. He would argue it has nothing to do with the content of the speech. But come on. Think about the bill's specificity. It applies only on game day, only in the stadium and only at midfield. What else is it trying to guard against?
This is legislation absolutely targeted to criminalize a form of expressive conduct for no reason other than the expression is annoying. This is exactly the kind of legislation the First Amendment prohibits. What part of "make no law" does Rep. Williams not understand?
I'm sure Rep. Williams is well intentioned here, but is this really what we elect state representatives to worry about? Let's allow the very highly paid coaches and Athletic Directors to deal with this "problem." And let's not ignore the First Amendment.
