A Risky Play: Revising Native American-Inspired Team Names Turns into Prohibiting Fan Expression
By: Nicolas Burnosky* Posted October 6, 2020
On August 20, 2020, the Kansas City Chiefs released a public statement concerning ongoing conversations with leaders from Kansas City Native American tribes. The Chiefs first initiated discussions with local Native Americans back in 2014, in order to “gain a better understanding of the issues facing Native American communities in our region and explore opportunities to both raise awareness of Native American cultures and celebrate the rich traditions of tribes with a historic connection to the Kansas City area.”
As a result of these discussions, the Chiefs declared its new policy prohibiting fans from wearing headdresses or face paint that “in any way references or appropriates American Indian cultures and traditions” within Arrowhead Stadium. This represents an extension of the Chiefs’ prior policy of discouraging such expression as well as discouraging broadcasters from panning cameras on fans who engaged in such expression. Another past practice that will be sidelined is the Arrowhead Chop, a pregame tradition involving a fan or former Chiefs player banging a large drum, during which fans in the stands raise and lower their arms in the fashion of throwing a tomahawk while chanting.
Not the First, and (Likely) Not the Last
Professional sports teams have recently undergone several transformations in response to disapproval from Native American activists, civil rights organizations, and sports organizations like the NCAA. Indeed, some have described the Washington Redskins’ actions as setting off a domino effect. “[I]n light of recent events around our country and feedback from our community,” the Washington Redskins undertook measures to comprehensively review its Native American depictions especially in its organization’s name. The Cleveland Indians have also expressed their intent to discuss similar issues with Native American groups, including changing its name. Even the President of the Anti-Defamation League has joined the fray, urging teams to reconsider their portrayals of Native Americans.
The movement to remove offensive references to Native Americans has extended beyond just various sports and civil rights organizations. In 2019, the State of Maine’s Governor signed a bill prohibiting all public schools, including colleges and universities, from “hav[ing] or adopt[ing] a name, symbol or image that depicts or refers to a Native American tribe, individual, custom or tradition and that is used as a mascot, nickname, logo, letterhead or team name of the school.” Additionally, in 2005, the NCAA prohibited the use of “hostile or abusive” representations of Native Americans during its postseason championships. Since then, ten NCAA teams have changed team or logo references to Native Americans, “three kept their nicknames but stopped using them to represent Native Americans,” and five maintained their team names or mascots upon receiving approval from their local tribes.
Free Speech Implications of Chiefs’ New Policy
Historically, most attempts by professional sports teams, state governments, and Native American activist groups to remove offensive references to Native Americans on logos or as mascots have been successful. None raised First Amendment issues; for example, the NCAA’s policy only applied to member schools and student athletes, while the Maine statute applied to schools who received direct funding from the state. Here, however, the Chiefs’ new policy does not apply to subsidiaries, it applies only to fans entering the stadium and to a specific content of speech: headdresses and face paint “styled in any way [that] references or appropriates American Indian cultures and traditions.”
Some have argued that stadiums must respect fans’ free speech rights. Generally, in order for the First Amendment to apply with force against a particular entity, that entity must be a state actor and constitute one of three different forums that each present varying degrees of restrictions on regulating speech.
Out of three different state actor tests (symbiotic relationship, entwinement, and public function), professional sports teams are most likely considered a state actor under the symbiotic relationship test. This test focuses on the relationship between the state and the private entity, particularly if the state funds and upkeeps the entity. Whether a symbiotic relationship exists focuses not only on an agreement such as between a landlord and a tenant, but also on a “partnership” between the parties.
According to a recent ruling by the Supreme Court of Missouri, such a partnership existed between the Chiefs and the government. The sports complex is a political subdivision of Jackson County, which, in turn, is a political subdivision of Missouri. When Arrowhead Stadium was to be renovated in 2006, the Missouri Development Finance Board agreed to issue tax credits to project donations as well as provide its own donations to the project. A symbiotic relationship would most likely be found between the Chiefs and the sports complex authority due to Finance Board’s “finding that the project provided substantial economic benefits to Kansas City, Jackson County, and the entire State” as well as, of course, the Chiefs. Therefore, a court considering a challenge against the Chiefs’ policy would almost certainly define the Chiefs as a state actor, thereby subjecting it to the commands of the First Amendment.
Since the Chiefs are most likely considered state actors, the next issue to consider is Arrowhead Stadium’s classification as a specific type of forum. There are three distinct forums: public, limited public, and nonpublic. Sidewalks and parks are considered “quintessential public forums” where even content-based regulations must withstand strict scrutiny to survive. In limited public forums, where the government has opened a forum for speech about particular content, it may not impose further speech restrictions. Nonpublic forums allow the government to regulate speech content, so long as the regulations are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Considering that sports stadiums, in general, and Arrowhead Stadium, specifically, not only provide a forum for fan expression, but encourage it, the Kansas City Chiefs’ will likely constitute a limited public forum.
If a court were to consider the Kansas City Chiefs as a state actor and its stadium a limited public forum, the Chiefs would have to comport with the First Amendment. Accordingly, its policy must withstand strict scrutiny. While there is a strong government interest in preventing discrimination along demographic lines, it is questionable whether the Chiefs will be able to assert that infringing upon fans’ right to free speech is the least restrictive means of achieving that interest. Furthermore, the policy is arguably overbroad as it prohibits face paint that “in any way references or appropriates American Indian cultures and traditions.” Several questions remain that undermine the narrowly-tailored requirement: Are Native American fans also prohibited from entering the stadium if wearing face paint or a headdress? What if fans intend on wearing non-Native American-styled face paint, are determined anyway to have referenced Native American culture in “any way?”
While the Chiefs have taken a large, courageous step forward, restricting fan expression and crafting a potentially overbroad policy might be grounds for a legal challenge, potentially subjecting them to a 15-yard penalty and automatic first down for the other side, involving plenty of legal fees and invalidation of their laudable policy.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger Sch
 See A Statement From The Kansas City Chiefs, Kansas City Chiefs (Aug. 20, 2020 3:00 PM) [hereinafter Statement], https://www.chiefs.com/news/a-statement-from-the-kansas-city-chiefs (discussing progress and product of discussions with local tribal leaders).
 Id. (describing purpose behind Kansas City Chiefs’ meeting with Native American leaders).
 Amber Ruch, Kansas City Chiefs Discourage Fans from Wearing Headdresses, American Indian-Themed Face Paint, KFCS12 (August 20, 2020 6:11 PM), https://www.kfvs12.com/2020/08/20/kansas-city-chiefs-discourage-fans-wearing-headdresses-american-indian-themed-face-paint/ (noting Chiefs fans still allowed to wear other types of face paint).
 See John Eligon, Celebrating the Kansas City Chiefs, the Chip Divides, N.Y. Times (Jan. 29, 2020), https://www.nytimes.com/2020/01/29/sports/football/chiefs-tomahawk-chop.html (explaining Chiefs’ prior policy of discouraging, opposed to strictly prohibiting, forms of expression outlined in new policy).
 See Statement, supra note 1 (laying out Chiefs further policy considerations); see also Michael Levenson, Kansas City Chiefs Ban Headdresses at Stadium, N.Y. Times (Aug. 20, 2020), https://www.nytimes.com/2020/08/20/sports/football/Kansas-City-Chiefs-Ban-Headdresses-Face-Paint.html (reporting other traditions under review by Chiefs).
 See Ending the Era of Harmful “Indian” Mascots, Nat’l Congress of Am. Indians (Aug. 18, 2014), http://www.ncai.org/proudtobe (outlining campaign to end stereotypical depictions of Native Americans in the professional sports arena).
 See Adam Kilgore & Roman Stubbs, To Native American Groups, Redskins Name is ‘Worst Offender.’ Now They Hope for More Changes, Wash. Post (July 9, 2020), https://www.washingtonpost.com/sports/2020/07/09/native-american-groups-redskins-name-change-indians-braves-blackhawks/ (“Is Washington’s imminent name change a singular spasm or an earthquake that leads to a series of tremors? One major development supports the latter. That same day, less than 12 hours after Washington’s declaration, baseball’s Cleveland Indians announced they would ‘determine the best path forward’ for their 105-year old name.’”).
 Lauren Lantry, Washington Redskins to Undergo ‘Thorough Review’ of Team Name ABC News (July 3, 2020), https://abcnews.go.com/Politics/washington-redskins-pressure-corporate-sponsors-reviewing/story?id=71596724 (explaining Redskins’s recent consideration of its depictions of Native Americans).
 See Associated Press, Cleveland Indians to Meet with Native Americans on Potential New Name, ESPN (July 23, 2020), https://www.espn.com/mlb/story/_/id/29523732/indians-meet-native-americans-potential-new-name (explaining Cleveland Indians agreed to consult with Native Americans to discuss new name).
 See Marcus Dysch, ADL Enters Row Over ‘Offensive’ Sports Team Names, Jewish Chronicle (Oct. 16, 2013), https://www.thejc.com/news/world/adl-enters-row-over-offensive-sports-team-names-1.49837 (noting ADL President’s remarks that teams should consider changing Native American symbols and mascots).
 For further discussion of broader movement to remove offensive references to Native Americans, see infra notes 12-15.
 Prohibition of Native American Mascots, Me. Rev. Stat. Ann. tit. 20-A, § 12 (2019).
 NCAA American Indian Mascot Ban Will Begin Feb. 1, ESPN (Aug. 5, 2005), https://www.espn.com/college-sports/news/story?id=2125735 (describing NCAA’s decision to prohibit use of Native American mascots by teams participating in postseason championship games); see also Allison T. Burtka, Native American Mascots – Honoring Culture or Symbol of Disrespect?, Global Sport Matters (Apr. 24, 2018), https://globalsportmatters.com/culture/2018/04/24/native-american-mascots-honoring-culture-symbol-disrespect/ (explaining NCAA’s policy and considering arguments for and against that policy).
 Burtka, supra note 13 (listing different NCAA teams’ responses to 2005 mascot policy).
 See ESPN, supra note 13 (outlining different groups’ successful efforts to modify offensive references to Native Americans).
 See id. (describing NCAA’s policy as prohibiting display of such references to Native Americans on uniforms and within school when school hosted championship game); see also tit. 20-A, § 12 (prohibiting use of or reference to any Native American individual, tribe, or custom as logo, mascot, or team name in any Maine public school).
 Statement, supra note 1 (prohibiting fan usage of face paint that references Native Americans or wearing headdresses).
 See Kaitlin Shire, You Can’t Sit with Us: Limiting Free Speech in Sports Arenas and How the Tampa Bay Lightning Took Home Ice Advantage Too Far, 24 Jeffrey S. Moorad Sports L. J. 81 (2017) (arguing professional sports stadiums might run into First Amendment problems by restricting fan speech); see also Nick DeSiato, Silencing the Crowd: Regulating Free Speech in Professional Sports Facilities, 20 Marq. L. Rev. 411 (2010) (arguing state-funded sports stadiums may be limited by First Amendment in regulating fan expression).
 See DeSiato, supra note 18, at 416 (requiring showing of entity being a state actor and then determining level of First Amendment restriction based on entity’s forum designation).
 See id. at 417 (“[C]ourts are most willing to find state action where a private professional club plays its home games in government-owned facilities if the court utilizes the symbiotic relationship test.”).
 See id. at 418 (noting courts have found symbiotic relationship between Yankees stadium and New York City because city helped fund and maintain stadium and stadium and city jointly economically benefited from arrangement).
 See Shire, supra note 18, at 89-90 (“[A] publicly funded arena … needs more than a lease with the city to satisfy the symbiotic relationship test; it needs a more unified relationship to exist.”).
 See Kan. City Chiefs Football Club, Inc. v. Dir. of Revenue, 602 S.W.3d 812, 814-17 (Mo. 2020) (en banc) (detailing relationship between Missouri, Jackson County, Jackson County Sports Complex Authority, and Kansas City Chiefs).
 See id. at 814-15 (noting Missouri legislature gave Jackson County power to create sports complex authorities in order to procure leases with professional sports teams).
 See id. at 815-16 (noting Chiefs’ proposal for Missouri Development Finance Board to issue tax credits and Finance Board’s agreement on that proposal).
 Id. at 816 (emphasizing Finance Board’s agreement to offering tax credits as predicated on believing on a mutually beneficial arrangement with Chiefs).
 See DeSiato, supra note 18, at 416 (“In order to invoke [First Amendment] protection, the private entity’s actions, in most cases, must qualify as public under the ‘state actor’ requirement.”).
 See Shire, supra note 18, at 88 (stating private entities that are considered state actors must still undergo analysis of whether its forum is open to speech); see also Shire, supra note 18, at 89-90 (finding stadium more likely classified as state actor when more unified economic relationship exists between stadium and state); DeSiato, supra note 18 (finding state actor relationship between stadium and state when both planned and benefited from joint economic ventures).
 See Harvey Silverglate et al., Found. for Individual Rights in Educ., Guide to Free Speech on Campus 112-22 (2d ed. 2012) (noting three traditional fora used in assessing a state actor’s authority over certain types of messages).
 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (requiring content-based speech restrictions to serve a compelling governmental interest and to be narrowly tailored).
 See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 685 (2010) (“‘Once [the government] has opened a limited [public] forum,’ we emphasized, ‘the State must respect the lawful boundaries it has itself set.’” (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995))).
 Cornelius v. NAACP Legal Def. & Educ. Fund Inc., 473 U.S. 788, 806 (1985) (stating nonpublic forums can discriminate speech on basis of subject matter, but are prohibited from enacting viewpoint discriminatory regulations).
 See Shire, supra note 18, at 96 (“[A] court would likely find that the seats are a designated public forum because the arena has opened those areas for speech for only certain people during certain periods of time.”); see also DeSiato, supra note 18, at 426 (noting while professional sports arenas might not qualify as public forum, it is likely they will qualify as limited public or nonpublic forum).
 See Shire, supra note 18, at 88 (“[T]he Constitution will apply if the private entity is held as a state actor.”).
 See Perry, 460 U.S. at 45 (“For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”).
 See United States v. Paradise, 480 U.S. 149, 167 (1987) (“The Government unquestionably has a compelling interest in remedying past and present discrimination by a state actor.”). But see Shaw v. Hunt, 517 U.S. 899, 909-10 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest.”); Frisby v. Shultz, 487 U.S. 474, 485 (1988) (stating government action is narrowly tailored only when it eliminates no more than source of evil it seeks to redress).
 Statement, supra note 1 (discussing policy regarding use of headdress and face paint).