Fine Print Everywhere: NY Yankees Wave Goodbye To First Amendment
There's the pottymouth passage in their fine print on tickets. For MSNBC, Bob Sullivan reports on it and the bug type presented to us by so many companies:
"Ticket holders acknowledge and agree that the Yankees' ban on foul/abusive language and obscene/indecent clothing does not violate their right to free speech," the team wrote recently in a new far-reaching set of fine print published in the October edition of Yankees Magazine. The phrase appears on tickets, too....U.S. consumers rarely engage in any kind of transaction today without clicking or signing away a wide swath of their rights. Cellphone contracts, software purchases, baseball tickets, credit card applications -- all include lengthy tomes full of ominous warning that most of us ignore.
But in a new book titled "Boilerplate," author and lawyer Margaret Jane Radin is taking aim at the intellectual and legal basis of fine print, trying to put a serious dent in the legal argument behind it.
"I don't think there's a contract, ever, when something is just dropped on us," Radin said, "especially when there is no option to vote with your feet as a consumer, when there are no alternatives."
Radin's point is that contracts, by definition, involve two equal parties that negotiate terms, while fine print is issued on a "take-it-or-leave-it" basis. (Just try to negotiate a lower early termination fee or strike out any clause when you sign a cellphone agreement.) In layman's terms, fine print is merely a list of bad things that can happen to you, the consumer. You might get hit with a penalty fee; your service might be terminated; your right to join a class-action lawsuit is surrendered.
Some lawyers would call these take-it-or-leave-it agreements "contracts of adhesion," a special class of contracts that can be ruled unenforceable if the consumer persuades a judge that the provisions are "unconscionable." As you might imagine, that's a high bar -- it means generally that such provisions would be shocking to a normal person's conscience as excessively unfair. Such a legal battle also involves an excessive amount of legal fees, so it's not a realistic option for an aggrieved cellphone holder.
Radin wades into this confusing situation with a fairly radical idea. Trying to shove fine-print agreements into contract law, she argues, is like trying to shove a round peg into a square hole. She calls it "legal gerrymandering." Instead, courts need to adopt a brand-new way of looking at fine print, she says.
Her view is simple: Interactions between consumers and companies are more like brief encounters with strangers than negotiated bargains between equal parties. As such, they fall into the realm of tort law, rather than contract law, Radin argues.
That change would have dramatic implications for fine-print haters everywhere. Were these agreements viewed as torts, angry cellphone owners would retain the right to sue for damages, including pain and suffering, if they believe a company has violated their rights, by making an unauthorized withdrawal from the consumer's checking account, for instance.
Aren't they a private business? I don't mind arenas and restaurants being able to throw out potty mouths, shirtless people, etc.
NicoleK at December 21, 2012 6:46 AM
I think this is a very interesting idea. Those "contracts" are ridiculous.
Also, as a Yankee fan who regularly goes to games, abusive language when shouted at the players is part of the fun. The bleacher creatures are hilariously obscene.
Name me another socially sanctioned place where yelling is acceptable. That's one of the reasons guys go to those games. Sometimes you just need an outlet for that.
Andrew at December 21, 2012 7:36 AM
NicoleK, it's not clear to me that without this fine print, the Yankees wouldn't be able to throw out "potty mouths".
I don't recall that fine print on any menu or posted at any restaurant. I do see signs that says management reserves the right to refuse service.
I am not a lawyer, it would seem to be good to stop all the fine print take it or leave it crapola that is foisted on us, especially the kind that removes other various legal rights by demanding for instance that all legal issues be handled through arbitration.
jerry at December 21, 2012 9:21 AM
You forget: the first amendment applies to the government. Private entities can do whatever they like. If you don't approve, don't do business with them.
a_random_guy at December 21, 2012 9:26 AM
The complicating factor is that the Yankees, like most major league sports teams, benefit significantly from subsidies in the form of sweetheart stadium deals and tax exemptions. If that wasn't the case, the situation would be a lot more straightforward: you don't like the terms of admission, don't go.
Cousin Dave at December 21, 2012 10:21 AM
I would like to point out that by reading this post, the reader gives up the right to not have me come over and take all of their money.
Same thing, isn't it?
DrCos at December 21, 2012 1:33 PM
They did get subsidies because it was thought they would provide jobs to the community, a gamble that didn't pay off as well as hoped, but does that make them NOT a private business? The government didn't negotiate shared ownership. Unless you have a volcano fortress on a private island, you get some assistance (mail delivery, streets, etc.) from taxpayer dollars. To follow that train of thought is to say there are no private businesses.
(I think this came up when we were discussing Princeton, because they get government grants for research but also say you can't be a student there if you join a frat--which I have no problem with, because it's still a private institution.)
I don't see why the First Amendment would protect you from being ejected from the stadium for foul language.
The part about a contract not being a contract if it's "dropped on you" is interesting. I believe if you accept a ticket, and you see there's writing on it, and you use the ticket, you've basically signed it. Check out Parker v South Eastern Railway Company.
http://en.wikipedia.org/wiki/Parker_v._The_South_Eastern_Railway_Co
Insufficient Poison at December 21, 2012 9:17 PM
DrCos, you are going to be so disappointed when you get here.
Insufficient Poison at December 21, 2012 9:20 PM
1. If contracts of adhesion deprived consumers of something they really cared about, a smart competitor would brag in its advertising, "Hey, no fine print," and take away all the business from the bad guys. Sort of like how Saturn advertised a new kind of hassle free car shopping experience. The fact that there is so much fine print (and no more Saturns being built) suggests that people truly care about other things, like whether the team wins or whether the car is made out of plastic.
2. There is so much fine print because lawyers are clever and judges are wimps. "You violated my rights by kicking me out without first telling me I can't pour beer on my neighbor's head." Every sentence of fine print has its birth in a stupid lawsuit.
Blahdi Blah Blah at December 21, 2012 10:29 PM
They did get subsidies because it was thought they would provide jobs to the community, a gamble that didn't pay off as well as hoped, but does that make them NOT a private business? The government didn't negotiate shared ownership. Unless you have a volcano fortress on a private island, you get some assistance (mail delivery, streets, etc.) from taxpayer dollars. To follow that train of thought is to say there are no private businesses.
There is a difference between a business which used tax payer funded roadways (while paying taxes) and a business which has more than half of their constructions costs paid for directly by the taxpayers
lujlp at December 21, 2012 10:54 PM
I guess I'm not seeing the difference between this and a "No shoes, no shirt, no service" sign.
NicoleK at December 22, 2012 8:16 AM
Many of these agreements are a matter of agreeing not to sue for absurd reasons. First, the lawyers make it possible to start ridiculous lawsuits, then they charge for drawing up contracts to supposedly prevent them, and now they're snatching the football away saying "Ha Ha! We can sue after all!"
Joseph Hertzlinger at December 23, 2012 5:54 PM
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