Madison Square Garden Security Faces the Music

Introduction

Madison Square Garden (MSG) launched its “attorney exclusion list” in June 2021. This forbade attorneys litigating against it or its subsidiaries from its venues via facial recognition technology. MSG claimed it enacted the policy to prevent unauthorized evidence collection. Kelly Conlon and Larry Hutcher were removed from their events despite Conlon not being admitted to the NY State Bar, and Hutcher owning season tickets for almost fifty years. Davidoff, Hutcher & Citron, launched counterattacks on the policy, challenging it in court. NY’s Appellate Division narrowed the trial court's order to exclude lawyers from other firms with active lawsuits from the relief provided to Davidoff, Hutcher & Citron. MSG’s liquor license is also under siege from state authorities.

Civil Rights versus Property Rights

The instant matter weighs the tension between the civil right to access a public venue and the property right of exclusion. Excluded attorneys see their purchased, properly obtained right to enjoy public events stripped away. On the other hand, MSG sees the same happen to the use of their venue as they see fit, as challenges to this policy escalate. This debate involves important questions about the American legal system, such as how it balances the landowner’s right to exclude with public accommodations civil rights protections and the relevance of spite in a civil action.

Public Accommodations Civil Rights Protections versus an Owner's Right to Exclude

Civil rights legislation in America has been the subject of critically important discussion and has seen itself evolve drastically over the nation’s history. Many key legislative struggles attempted to rectify America’s wildly disparate treatment of racial groups after the Civil War’s end.

Constitutional Amendments

In 1883, the Supreme Court decided on five pivotal cases involving the fifth, thirteenth and fourteenth Amendments, referred to as the Civil Rights Cases. As they pertain to this matter, these decisions considered whether the fourteenth amendment could target private action. The Supreme Court read the fourteenth amendment narrowly, limiting its equal protection provision to state action. This reading is still good law today. Any such challenge the barred lawyers would raise using this amendment would almost certainly fail, as both MSG and Dolan himself are private actors. The lawyers would also likely fail to win using Yick Wo, another pivotal civil rights case, because even if they successfully frame the MSG policy as facially neutral and being used in a discriminatory manner, Yick Wo’s holding also only applies to state action. Ultimately, constitutional provisions seem to favor exclusion over the right to enjoy public accommodations. Accordingly, most governmental safeguards only apply to state actions.

The Commerce Clause

It seems that many advances in public accommodations civil rights protections since 1865 relating to government regulation of private actors centered around whether the racist exclusion hampered interstate commerce. This was especially true in the mid-1960s when Heart of Atlanta v. US and Katzenbach v. McClung were decided. Any banned lawyers not living in NY could try to compare their situation to the plight of the Black Americans prevented from staying in the Heart of Atlanta Motel or eating in Ollie’s Diner. They could argue that, as in Heart of Atlanta and Katzenbach, MSG's rule limited interstate commerce and should be repealed accordingly.

While this would be a closer case, it is also unlikely these arguments would prevail. The above cases were an attempt to free the country from the time’s form of horrific state-supported racism; a far cry from letting lawyers watch basketball. Racial groups are also a protected class, while attorneys are not. When concerning rules restricting individuals not on the basis of any protected class, Williamson v. Lee Optical requires a rational basis for the restriction. The attorneys could argue that MSG’s reasoning is pretextual, but it is unlikely a court would decide lawsuit protection fails to satisfy this test.

Overall, the basis of civil rights cases seems to favor groups that have been the victims of state action. When the government does regulate private actors, it tends to use interstate commerce as its justification for striking down discriminatory policies. However, I feel that applying the commerce clause here would be an overreach because of MSG’s stated basis for the bans.

Spite Cases & State Law

Additionally, the argument that this was a policy arising chiefly from spite would also be unlikely to yield a victory for the banned attorneys. A comment in the California Law Review found a malicious motive plays no role in determining one’s civil liability, though banned lawyers could say that changing times necessitate changing this view, as it is almost 100 years old.

The most promising component of NY State Law for the banned lawyers is Civil Rights Law § 40(b), as it prevents refusal for admission or ejection from public performances unless an attendee’s actions risk “breaching the peace.” The banned attorneys could counter the argument MSG provided in its statement (litigation’s adversarial nature requires bans to preempt illicit evidence gathering) with a claim that attorneys’ behavior did not breach the peace, and that MSG has yet to offer an example or other evidence of an attorney actually collecting evidence in an MSG venue in breach of proper procedure.

Banned lawyers could also join the fight against MSG’s liquor license to attack MSG’s wallet. The New York Liquor Authority sent MSG a letter claiming that its license requires that the venue remain open to the public. Also, “groups or individuals cannot be excluded on the basis of criteria that are not directly related to your duties under your [liquor] license.” The authority threatened disciplinary action in the event it finds that violations have occurred. MSG admitted that lapses in its ability to sell alcohol may materially impact its profits. Additionally, non-lawyer attendees would surely be frustrated that this dispute prevented their drinking, potentially leading to bad reviews online and other criticism. We have noted the effectiveness of “running major mouth” through Robinson’s story, and excluded lawyers would be wise to use a similar approach. The court of public opinion may be banned lawyers' best option.