Ari Ezra Waldman | Baseball | Law - Gay, LGBT | News

Who's on First (Amendment)?


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Mcdowell Roger McDowell pitched for the '86 Mets, that other New York baseball team. My sister was a fan of the team, so I remember seeing Mr. McDowell's dour, angry face in almost every Met win and more than a few of the team's losses. He finished the season with only 65 strike outs in 128 innings, but he was always the kind of pitcher that pitched to contact, getting you out with a hard sinker and a blazing fast ball. He was even better in the National League Championship Series, when he allowed only one hit in seven innings. And, yet, no one seemed to care that the guy was a total asshat.

They called him a "prankster" for lack of a better word. He used to light fire crackers in dugouts, burned teammates' feat with cigarettes and, if you believe Wayne Knight's Newman from Seinfeld, he spit on fans.

Recently, Mr. McDowell's antics took a new turn. Before a game between the Atlanta Braves, for whom Mr. McDowell serves as pitching coach, and the San Francisco Giants, Mr. McDowell made various anti-gay remarks at a group of male fans. He made "crude gestures with his hips and a bat" at a man, his wife and their two kids. Mr. McDowell then allegedly said that children do not belong at a baseball park, picked up another bat, approached the father and asked him, "How much are your teeth worth?"

Many people, gay and straight, found this conduct offensive. And, after the NBA so decisively dealt with Kobe Bryant's recent anti-gay slurs, prominent community leaders like GLAAD's Jarrett Barrios and accomplished attorney Gloria Allred called for MLB Commissioner Bud Selig and Atlanta Braves owner John Malone to follow suit. They wanted, at a minimum, a hefty fine, a suspension, a PSA on the harm caused by anti-gay slurs and damages.

A regular Towleroad reader emailed me this question: "Doesn't McDowell have a First Amendment right to say whatever the [bleep] he wants as long as he doesn't hurt anyone? Isn't Gay Inc. making a federal case out of just some dude saying [bleep] that is typical for guys playing sports?"

I agree and disagree. Mr. McDowell's case is not about the First Amendment; neither the government nor any state actor is restricting his speech by punishing him. And, no one is making a federal case out of anything. But, my interlocutor is right about one thing -- and not about my and other gay men's inability to relate to Mr. McDowell or Mr. Bryant because I don't play team sports. He is right that these men used words typical of men in sport. But that does not make using those words okay. The question for the gay community is how far do we want to go.


Gay-related rhetoric is common in environments defined by their masculinity. Sports, rap, construction, ranching and, of course, cutting hair (I'm only half kidding about the last one... There's this barber shop run by Ukranian Jews in Chelsea whose barbers do not realize I understand Hebrew). Men in these industries do not always use anti-gay slurs against real or perceived gays and lesbians; that is, calling someone a "fag" is rarely meant as an accurate assessment of someone's sexuality. Instead, its a word bandied about by straight men trying to prove their heterosexual bona fides and to establish dominance over one another. That's just what men do.

And, that is the problem. Calling someone "Jew" in the trade and business worlds used to be a common slur about the target's parsimony, lack of ethics and all around "otherness." Yet, we no longer tolerate such comments even at the margins of society. We still call our business adversaries cheap and underhanded, but we do not call them "Jews." A man's attack on his athletic adversaries will probably always revolve around weakness. So, we have to divorce gay-related rhetoric from weakness.

We need Kobe Bryant to film anti-bullying PSAs, we need athletes to come out, we need our brave men and women in uniform to come out and you and I need to prove that being gay is no more synonymous with weakness than being left-handed or having red hair.

Bat But, this is not a case where the growing reach of the First Amendment is at fault. Free speech rights may prevent the state from passing a law criminalizing Mr. Bryant's slur, but it would allow the state to proscribe Mr. McDowell's threatening speech and conduct with a baseball bat. It is, therefore, irrelevant to this context since public laws are not at issue. Even if the First Amendment allowed you to say whatever you want, a private employer could punish you for your conduct if it does not comport with the company's standards. In other words, the First Amendment may permit you to call someone a "fag," but it does not guarantee you a job when you say it to your boss.

Another federal law -- Title VII -- bans sexual harassment in the workplace. It allows employees who are victims of quid pro quo and hostile environment harassment to sue their co-workers and/or employers for harassment and doing nothing to stop the harassing conduct. At first blush, this law might seem applicable if Mr. McDowell used anti-gay sexual rhetoric against a player or member of the Atlanta Braves staff and the Braves and MLB did nothing to stop it. I am not so sure. While same-sex harassment is actionable under Title VII, gay-related rhetoric may be seen as part of the common give-and-take among men in sport. Title VII is not a civility code, and it should not be. But, that does not mean that MLB and the NBA cannot enforce their own codes of conduct.

The NBA and MLB have judged that anti-gay rhetoric does not belong in their games and the leagues can punish their employees as they see fit (in accordance with any relevant collective bargaining agreement). And while I believe that Mr. Bryant's and Mr. McDowell's misdirected anti-gay rhetoric is part of the common give-and-take among men in sports, we should strive for a world where it is not. And, to that end, the leagues have the right and responsibility to enforce civility among their players, fans and referees. In fact, the very ordinariness of the comments makes these private civility codes all the more important. Only when the leagues enforce these rules will professional athletes realize that anti-gay rhetoric is wrong, inappropriate and just unnecessary.

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  1. discrimination dies not by one fatal blow, but by a thousand tiny cuts.

    Posted by: deedrdo | May 11, 2011 1:11:42 PM

  2. The moral of the story is... the First Amendment doesn't give you freedom from responsibility from what you say. It's not a violation of your first amendment rights for your mother to send you to bed without dinner for swearing, for instance.

    On the other hand, I wish that the government would pass a law stating that people who use the term "Gay Inc" are idiots. It doesn't have to be an actionable law...

    Posted by: Randy | May 11, 2011 1:15:47 PM

  3. I think this is more about the class based system of justice and business ethics in America. A pro athlete is fined or reprimanded for actions that would get a Walmart worker fired. Can you imagine going into Macy's and having a department manager threaten you with a bat, call you names, make sexually suggestive remarks and tell you your kids shouldn't be in the store? They would be fired and probably hauled off to jail. But pro-athletes like other elites are treated differently.

    Posted by: Chuck | May 11, 2011 1:30:34 PM

  4. Very true CHUCK.

    But where there are still similarities and this happens with abundance in Hollywood, is that it doesn't matter whether you're a Walmart executive, a Hollywood big shot or a sports star-you can get away with anything until you become past your prime.

    This guy reminds me of Mel Gibson. Of someone who was getting up to all sorts for decades in Hollywood but we only saw one side,like this guy who use to 'burn' his colleagues feet.

    In both cases, these people are insane and deeply damaged, like an exec-see allege harassment case on Marc Jacobs biz partner-but are allowed to get away with their behaviour because of return$$.

    The moral of the story is it's all about power. Once you have it, you can use the law how you want it to be used and for whatever means.

    Posted by: Rowan | May 11, 2011 1:54:29 PM

  5. Yeah, this is "gay inc" out of control.

    The guy who threatened to sue is straight.

    His offended wife is straight.

    Everyone assumes the two girls who witnessed the vulgarity (and its repetition by his attorney, complete with a two-person reenactment of the offending use of a baseball bat) are straight.

    His attorney is straight.

    The league officials who punished him are straight.

    The only people in this brouhaha who MIGHT be gay are the guys he was insulting and they're not part of the story.

    Posted by: BobN | May 11, 2011 2:15:51 PM

  6. @BobN: Please don't bandy about facts and cite reality. Doing so is very hard on many of Towleroad's delusional commenters.

    It is interesting that the guys he insulted haven't been more prominent in this case. Wonder what their story is.

    Posted by: Paul R | May 11, 2011 3:03:57 PM

  7. I've been openly gay for over 30 years and I'll never EVER understand why supposedly "straight-hetero" men are so incredibly obsessed with where I put my cock and my ass? It's so obvious to me after all these years that ANYONE who spends time,life energy,$$$ trying to dehumanize their fellow humans not only needs psychological help but obviously wants and needs what they really desire in their closeted "hetro" hearts-a big fat one up their uptight assholes.

    Posted by: SFshawn | May 11, 2011 4:21:30 PM

  8. When he uttered the offensive remarks, McDowell was, presumably, wearing an Atlanta Braves uniform.

    This Braves professional insulted paying guests in a venue that received a large amount of taxpayers dollars to build. If the beer or popcorn vendor had done the same thing to a ticket holder, would he/she still be employed?

    Mc Dowell may well say what he likes at his own backyard bar-b-que or fraternity reunion.
    On the job, it seems to me, is another story.

    Posted by: L.J. | May 11, 2011 4:49:46 PM

  9. @sfshawn. I have several heterosexual male friends, and I finally found the courage to ask them this simple question, "why does what a gay man does with his body bother straight men so much?" The answer is simple, and complex at the same time. Heterosexual males define themselves as anything not "feminine" or "female." As a result, penetrative sex in which the male is penetrated is looked at as female, and therefore, "not male" in their viewpoint of masculinity and heterosexuality. Men are the pentrators, women are the ones to be penetrated. It's why straight men have such a taboo with their rear ends, as it's the one vulnerable place where penetration can actually occur. To be male and masculine is about power, status, to excel in competition, wealth, and control. Such acts as those conducted by gay men violate some of these tenets of masculinity, according to my friends, and why they have such an issue with it when they personalize it and project the situation on to themselves. I've never been able to fully convince them to separate male/masculinity from female/femininity (sex vs. gender), but they do start to separate their own preferences from mine and start to realize I'm not a threat to their sense of masculinity, so why must they feel the need to threaten me with mine just because I'm gay.

    Posted by: Keith | May 11, 2011 7:51:36 PM

  10. The letter of the law versus the spirit of the law

    The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the "letter") of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not adhering to the literal wording.

    "Law" originally referred to legislative statute, but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments.

    Posted by: I'm Layla Miller I Know Stuff | May 11, 2011 10:41:09 PM

  11. If I did not know Roger McDowell, I would of been the first in line to write the Commissioner of Baseball of my disgust with his actions, just as I did when Julio Tavarez of the Cubs and John Rocker of the Braves made anti-gay remarks several years ago. However those guys were bigots and known for being hot heads. This time, I wrote Commissioner Salig in defense of McDowell. During his playing Days,Roger was a fan favorite for the 3 teams he pitched for, and at all the cities he was a visiting player. I first met Roger in 1984 when he played for the Mets. In Chicago, he interacted with the fans, playing catch, flinging a Frisbee, or playing games that he gave away great gifts, of bats, signed baseballs and a $100. bill. I seen him in almost every time his team came to town. Not once did I ever see him make an obscene gesture, or make any anti-gay remark or treat any fan with disrespect. Roger is a good guy who made a mistake. When he apologized, I accepted it. I thought the guy who brought action against Roger, along with his lawyer, were equally guilty of poor judgment when they recreated the purported actions, did so right in front of the young girls they claimed they were protecting. I'm glad that Roger was not fired, and this one incident was truly out of character in his 25 year career as a player and coach.

    Posted by: Jerry Pritikin aka The Bleacher Preacher | Jun 2, 2011 4:11:19 AM

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