by: Mickey Ingles

We all have a love-hate relationship with referees.

We (silently) praise them to the high heavens when the calls go our way and we curse them to the seventh circle of hell when the whistles go the other way. And as anyone who’s been to a game can attest, the balance usually tips to the latter. Rarely do we hear crowds chanting “We Love You, Ref!” during breaks of play. Instead, we hear chants and insults of unimaginable cruelty. It’s sometimes a surprise we even allow kids to watch the games. It seems it won’t be long before we see attempts to quell hurtful and inappropriate language in sporting events.

 Regulating Offensive Fan Speech

The question then is, is it legally possible to stem this explosion of anger directed at referees? (Because contrary to whatever we think of the whistle-wielding zebras, they have feelings, too.)

The biggest challenge in attempts to regulate offensive speech against referees in sporting events is free speech, a right enshrined in our Bill of Rights and protected by the Civil Code.

Article III, Section 4 of the 1987 Philippine Constitution states, “no law shall be passed abridging the freedom of speech…” In a nutshell, the Constitution protects freedom of expression because of its importance both to the advancement of society and the individual.[1]

Article 32 of the Philippine Civil Code imposes liability for monetary damages on “any public official or employee or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs” the freedom of speech of a person.

Article 32 doesn’t get off the bench as much as its Bill of Rights counterpart (and understandably so), but it is important to remember ol’ Article 32 especially when private parties issue these regulations.

Remember that the Bill of Rights only applies against the government and other state actors.[2] So, if Congress decides to pass a “Respect for Referees Act” (which it probably won’t) or a public university like the University of the Philippines issues regulations for its alumni and students to cheer in a manner fit for its hallowed halls, these state actors have to hurdle Section 4 of the Bill of Rights.

If, however, a private party issues these regulations, then Article 32 applies. If any regulation of this nature is passed, it’ll surely come from athletic associations (like the UAAP), professional sports associations (like the PBA), or private schools trying to rein in their overzealous fans. These associations and schools are not state actors, putting Article 32 in play.

While I feel the distinction is essential (simply because that’s how the law is written and because private rights can be contracted away), the Supreme Court has actually applied the Bill of Rights to a number of cases involving speech in private universities.[3] The practical effect is that the same free speech analysis applies regardless of the author of the regulations, the difference lying in the remedy – a judgment of unconstitutionality for the state actor’s regulations and a ground for injunction and damages against the private actor.

Whoever the author may be, such regulation is a form of prior restraint and will likely fall.[4] Prior restraint is any “restriction on expression in advance of actual publication or dissemination.”[5] A regulation prohibiting, say, “swearwords, expletives, profanities, obscenities, curses, and other foul language directed at referees” is a restriction in advance of speech. And the Constitution protects this type of speech as staunchly as Benjie Paras protected the basket in the 90s.

Punishing That Boisterous (and Offensive) Fan

 I know what you’re thinking: so, you’re telling me that fans can shout anything we want? That’s great! I hate referees!

Well, yes, but not really. (Okay, that didn’t make sense at all. So let me explain.)

Yes, fans can shout almost anything they want at referees because most forms of speech are protected by the Constitution. Not really because there’s a small subset of speech that remains unprotected: defamation (or libel) and obscenity.[6]

For this post, we’ll focus on libel. But since we’re talking about outbursts in the heat of a game, we zero in on libel’s more vocal sister, slander.

Libel is the “public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”[7] Slander is oral defamation and carries with it a prison sentence or a fine, depending on the nature of the insult.[8]

To convict an offending fan, the following elements must be present:

• The allegation of a discreditable act or condition,
• The publication of the charge,
• The person defamed must be identified, and
• The allegation must be done with malice.

To illustrate, let’s examine one of the more ubiquitous fan outbursts we hear during games: “P*****-ina mo, ref! Nagpabayad ka! Gago! (“Your mother’s a whore, ref! You got paid! Idiot!”)

The second and third elements are easily satisfied. The shout of an impassioned fan is enough to satisfy the second element. As the referee is easily identifiable, the third element is also satisfied.[9]

It does get a bit tricky in the first and fourth elements. As to the first element, judges will have to determine if the allegation or implication that a referee was paid off by an opposing team is an act tending to cause the dishonor or discredit the referee. It seems it should be considered so, given that a reputation of fairness and impartiality is the currency of referees.

As to the fourth element of malice, the threshold question is whether referees are public figures. This is important because it determines if the presumption of malice applies.

Simply put, a public figure is a celebrity, someone whose accomplishments or fame has given the public a legitimate interest in one’s life.[10] A public figure also includes a private person involved in a matter of public or general interest.

Every defamatory imputation is presumed to be malicious, if no good intention or justifiable motive for it is shown.[11] However, this presumption does not apply when the subject of defamation is a public figure; in those cases, actual malice on the part of the defaming party must be shown.[12] Actual malice means the offender made the defamatory statement with the knowledge that it was false or with reckless disregard of its falsity, with the latter standard requiring a “high degree of awareness of probable falsity.”[13]

Hence, judges must first determine if referees are public figures. If they are, then actual malice must be proved. If they’re not, then the presumption applies (making it easier for the referee to win the case). An American court has implied that athletes can be considered public figures by entering an activity which “society [has chosen] to direct massive public attention to”.[14] Whether our courts will extend these to referees remains to be seen.

As can be seen, for a fan to be actually convicted of offensive speech against a referee requires all these elements to be present. While the task of aligning all these moving parts may seem daunting, it can be done – if the Warriors can execute a play to get Steph Curry open with a billion moving screens, then why not?

Mickey Ingles is the editor-in-chief of Batas Sportiva. He actually likes the Warriors. 

For an American perspective on the subject, check out David M. Ulian’s “A Rope, a Tree, Hang the Referee!”: Exploring the First Amendment Boundaries of Offensive Fan Speech Regulation in College Sports which appears in the Sports Lawyers Journal, Volume 23, Number 1.

[1] Fr. Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 Edition ed.) 231.

[2] Id at 105.

[3] I write more about this in Are You Sure You Want to Post That? Examining Student Social Media Use and Constitutional Rights, 60 Ateneo Law Journal (2016).

[4] Unless it was issued by a private party and was contracted away by the other party, similar to how we agree not to use Facebook or other social media during work hours in private employment contracts.

[5] Fr. Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 Edition ed.), 233.

[6] Id at 283.

[7] Act No. 3518 or the Revised Penal Code of the Philippines (RPC), Article 353.

[8] RPC, Art. 358.

[9] Of course, a defense attorney can raise the argument that the in games with more than one referees (like basketball), the defamed official is not easily identifiable.

[10] Ayers Production Pty. Ltd. v. Capulong, 160 SCRA 861 (1988).

[11] RPC, Art. 354.

[12] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[13] Disini vs. Sec. of Justice, G.R. No. 203335, 11 February 2014.

[14] Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254 (E.D. Pa. 1977)