Legal Affairs – Bigotry, Baseball, And the Magic of the Marketplace

National Journal

Atlanta Braves pitcher John Rocker’s ugly remarks about foreign-born and gay people, and his reference to a black teammate as "a fat monkey," may have provoked a broader public debate about how to deal with bigotry than have all the college speech codes put together.

It’s a useful debate-in sports sections, letters to the editor, talk shows, and hallway conversations-that may help clarify our collective thinking on how to reconcile our society’s abhorrence of bigotry with our reverence for the freedom of speech.

When baseball officials pressured Rocker last week to submit to psychological testing because of his remarks in a Sports Illustrated interview last month, my first instinct was to grouse about our New Age itch to subject people who voice offensive thoughts to the ministrations of doctors. Shades of the politically correct campus indoctrination teams and Red Chinese re-education camps! Not to mention H.L. Mencken, who wrote that "all persons who devote themselves to forcing virtue on their fellow men deserve nothing better than kicks in the pants."

My more-considered reaction is to see the psychological testing as a preliminary, relatively benign exercise in public relations, and to hope that baseball officials will find their way to a just penalty-a stiff fine would be about right, perhaps with a dose of community service-by heeding the magic of the marketplace.

By this I mean the collective common sense of the dozens of players and thousands of fans who deplore the habitually ill-tempered, in-your-face Rocker’s eruption into bigotry while, in many cases, valuing his talents on the field and even (to a point) his gruff flamboyance.

Baseball Commissioner Bud Selig cannot hope to please all of these people because they hold such a wide range of opinions. But he must know that he needs to satisfy as many of them as possible. For if he appears either to condone Rocker’s comments or to punish him too harshly, the result will be a blot on Major League Baseball’s image and empty seats at the ballpark.

During the Sports Illustrated interview, the 25-year-old Rocker (while driving his car) worked himself into a tirade about the traffic, including these comments: "Stupid bitch! Learn to f–ing drive! . . . Look at this idiot! I guarantee you she’s a Japanese woman. How bad are Asian women at driving."

Turning to his well-known disdain for New York and its rude fans, the hard-throwing closer imagined riding a train to the ballpark "next to some kid with purple hair next to some queer with AIDS right next to some dude who just got out of jail for the fourth time right next to some 20-year-old mom with four kids. It’s depressing. . . . The biggest thing I don’t like about New York are the foreigners. . . . Asians and Koreans and Vietnamese and Indians and Russians and Spanish people and everything up there. How the hell did they get in this country?"

Many of us have heard worse examples of bigotry. But this was no mere lapse into political incorrectness. It was quite loathsome, and very public. The angry reactions of Asian Americans, blacks, gays, and other people are fully warranted. So are the denunciations by sportswriters, politicians, and others, not to mention the disavowals of Rocker’s views by baseball officials.

The tricky question is, what should be done beyond denunciation and disavowal?

Had Rocker been in Canada, he might have risked criminal prosecution, under a hate speech code that bars statements "likely to expose a person or group of persons to hatred or contempt" because of "race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age."

No criminal penalty could be imposed in this country-at least not as long as the First Amendment guarantees "freedom for the thought that we hate" (in the words of Justice Oliver Wendell Holmes Jr.) from the heavy hand of government coercion. We should be thankful for that.

But the First Amendment does not bar private employers from disciplining or dismissing employees for bigoted (or otherwise offensive) speech. And in a society struggling to transcend the legacy of overt racism and sexism that pervaded our institutions until recent decades, we should be thankful for that, too.

Employers now have strong incentives to require their employees to keep bigoted thoughts to themselves. While our society still has plenty of bigots, it has become appropriately intolerant of public displays of bigotry. Offensive comments by employees are likely to drive away customers and insult colleagues-perhaps exposing the employer to racial or sexual harassment claims.

This is especially true of Major League Baseball and its teams. They are in the entertainment business; they need broad public good will to fill their ballparks and draw television viewers; they have had particular trouble attracting blacks; and their players need to get along. Indeed, Rocker has made himself such a pariah on the Braves that some teammates have called for trading their star closer.

And while employers should ordinarily respect their employees’ privacy when they are not on the job, baseball players like Rocker and other public figures are on the job whenever they give media interviews. Rocker’s contract requires "high standards of personal conduct, fair play and good sportsmanship," and Selig has the authority to punish any act that is "not in the best interests of the game of baseball."

What punishment should he impose? Selig’s decision to force Rocker to undergo psychological testing may not have been as silly as it seems. Although the Jan. 7 session apparently was not a serious search for mental illness, it was Rocker’s only chance to avoid immediate discipline, and was possibly a helpful step toward deciding what discipline would be appropriate.

Somebody needed to talk to the man, if only to get a sense of his thinking and help him understand why his remarks were so offensive. If it turns out that Rocker explained himself to the psychologists in a way that takes away some of the sting (or aggravates it), that might warrant a lesser (or greater) penalty. It might also help justify any penalty to potential critics, ranging from those who want Rocker expelled from baseball to the players’ union, which is defending him.

The choice of a penalty depends on a host of variables. How bigoted were the comments? Were they deliberately malicious? Slips of the tongue? Part of a broader pattern of racism? Possibly taken out of context or misconstrued? Has the offending speaker apologized? (Rocker has.) Exuded sincere remorse? (Not yet.) Was he or she in a high-level position, with power over employees (as were Marge Schott and Al Campanis)?

This is where the magic of the marketplace can help. Rather than having some baseball bureaucrat prescribe a penalty in a vacuum, Selig will presumably be influenced by the broad spectrum of baseball constituents-players, their union, coaches, and fans-who have access to the essential facts and have made their opinions known.

My sense is that many of them would agree that a lot of people have prejudiced thoughts; that employees are not ordinarily punished for their thoughts as long as they are civil on the job; and that the penalty for Rocker’s eruption should, accordingly, be strong enough to deter a repeat performance but not so harsh as to blight his career.

Public pressure to punish an employee for offensive speech can, of course, degenerate into a species of mob justice, especially when special-interest groups seek to publicize and aggrandize themselves by crusading for the offending employee’s head.

I’ve seen that happen in other cases. But I haven’t seen much unwarranted vilification of Rocker. His conduct has spawned a wealth of commentary, much of it both thoughtful and charitable. In a column in the Jan. 11 Atlanta Journal and Constitution, for example, civil rights leader and former Atlanta Mayor Andrew Young suggested that Rocker had sounded off during one of those difficult times when "all of your deep-seated prejudices and insecurities come to the surface. And let’s not kid ourselves, we all have them."

"Rocker is still young enough to change, young enough to be redeemed, young enough to learn [tolerance and restraint] with help from his teammates and the rest of the Atlanta community," Young added. "When he absorbs those lessons, he can throw 100-mile-per-hour strikes with a smile, and we’ll all win."

Young may overestimate Rocker. But I admire his willingness to give the man the benefit of the doubt.