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< | MSG Bans Attorneys Via Facial Recognition Software | | | | |
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< | -- By MichaelPari - 16 Feb 2023 | >
> | Madison Square Garden Security Faces the Music | | |
Introduction | |
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< | In June of 2021, MSG Entertainment instituted a policy prohibiting every attorney working at a firm litigating against any of MSG Entertainment’s subsidiaries from entering their venues. The “attorney exclusion list” bars attorneys from any MSG Entertainment facilities, including its namesake Madison Square Garden, and Radio City Music Hall. The enactment of such a wide-ranged policy is being carried out via facial recognition technology. This ban also applies to MSG theaters outside of New York, though the use of such software varies based on local regulations. | >
> | 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. While NY Civil Rights Law § 40(b) granted banned attorneys the right to enter theatrical performances and concerts after the doors open, the rule’s wording did not allow entry into sporting events. NY’s Appellate Division narrowed this 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 strikes at the heart of the tension between the civil right to access a public venue and a fundamental property right: exclusion. On the one hand, excluded attorneys see their purchased, properly obtained right to enjoy public events stripped away. On the other, MSG sees the same happen to the use of their venue as they see fit as their list faces mounting challenges from banned lawyers and state officials alike. This debate touches on 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 of these key legislative struggles involved attempts to either reaffirm or rectify America’s wildly disparate treatment of racial groups after the Civil War’s end.
Constitutional Amendments
In 1883, the Supreme Court decided on a collection of five pivotal cases involving the fifth, thirteenth and fourteenth Amendments, commonly referred to as the Civil Rights Cases. As they pertain to the matter at hand, these decisions outlined the scope of the fourteenth amendment’s ability to infringe upon the actions of a private actor. The Supreme Court conducted a narrow reading of the fourteenth amendment, limiting the scope of its equal protection provision to state action. This narrow reading of the fourteenth amendment is still good law today. Therefore, any such challenge the barred lawyers would raise using it would almost certainly fail, as both MSG and Dolan himself are private actors.
The lawyers would also likely fail to win using Yick Wo, an 1883 case in which a Chinese immigrant won when a facially objective policy regarding the operation of laundromats was applied in a discriminatory manner. Excluded lawyers could claim that the exclusion list was engineered and applied against them in a wrongly discriminatory manner. Many banned lawyers were not members of NY's bar, and/or did not know their firm was litigating against an MSG subsidiary. Thus, the lawyers could argue that their banning constituted a discriminatory application of a facially objective policy. MSG could also counter, and likely win, with the claim that Yick Wo’s operation of a business is a legal right, while watching an event at an MSG facility is merely a social right. A social right would likely not be protected even if constitutional safeguards became available against a private actor’s 14th amendment violations.
Ultimately, constitutional provisions seem to favor the private landlord’s power of exclusion over the right to enjoy public accommodations. Accordingly, most governmental safeguards’ applicability is restricted to state actions. It also must be noted that the discrimination in the Civil Rights Cases and Yick Wo was committed on the basis of the plaintiffs’ race, which is a much more important issue and grim justification than exclusion because of one’s occupation. | | | | |
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< | Who is affected
Attorneys from approximately 90 firms that are on the opposing side of litigation against MSG have been prohibited from entering their arenas. Lawyers who are not a part of the actual lawsuit versus MSG Entertainment, or even admitted to the bar in the state of New York, are still placed on the exclusion list. Photographs of the attorneys have been entered into MSG’s facial recognition software after being taken from the law firms’ websites themselves. Once inputted, scanning software combs the crowd for any attorney entered into its database, and guards are deployed to escort them out. While MSG Entertainment has not said which facial recognition software company it uses, several on the market can accomplish such a feat. | >
> | The Commerce Clause | | | | |
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> | 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. | | | | |
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< | Why is this happening
Madison Square Garden offered lawsuit-related reasons for the blanket ban across almost 100 law firms, though they seem far less likely than an attempt to deter lawsuits. First, MSG Entertainment issued a statement saying that this ban was enacted to stop lawyers from collecting evidence “outside proper litigation discovery channels.” Given the “inherently adversarial environment” litigation brings about, MSG Entertainment feels it needs to protect itself from those who seek to harm it. MSG also claimed that barring lawyers from its facilities prevents any individual lawyer representing the plaintiff from discussing their lawsuit with the respective MSG Entertainment employee. One lawyer who fell victim to the ban quipped back, comparing the odds of this happening to “being struck by lightning or the Knicks winning the NBA championship this year.” Such a conversation, or a similarly-unethical surveillance effort seems much less likely than someone merely going to a concert hall to see a concert. | >
> | 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 allowing lawyers to watch an event purely centered around entertainment. Racial groups are also a protected class, while attorneys are not. Also, when concerning rules restricting individuals not on the basis of any protected class, Williamson v. Lee Optical requires a rational basis for the restriction. While the attorneys could argue that MSG’s reasoning is pretextual, I find it unlikely that a court would hold that lawsuit protection fails to satisfy this test. | | | | |
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< | Case studies | >
> | 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. | | | | |
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< | Larry Hutcher
Hutcher has owned season tickets to the Knicks for almost fifty years, and sat just five rows behind the basket. However, when Davidoff Hutcher & Citron LLP, a firm comprised of sixty attorneys, took a case representing twenty-four disgruntled ticket resellers, the multi-billion-dollar enterprise they targeted exacted its vengeance. Just over a week after filing the lawsuit, Hal Weidenfeld, MSG Entertainment’s senior vice president for legal and business affairs, sent the firm a letter that said all of their attorneys were banned from entering the venue until the litigation was over. | | | | |
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> | Spite Cases | | | | |
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< | Kelly Conlon
Conlon took her daughter to New York City as part of a Girl Scout trip to see the Christmas Spectacular Show at Radio City Music Hall. While she passed through the metal detector, a voice came through the intercom: “woman with long dark hair and a gray scarf.” After being told she had been identified via facial recognition, Conlon explained that she was not a threat to the concert or any of its attendees. Conlon claimed that security staff “knew my name before I told them. They knew the firm I was associated with before I told them. And they told me I was not allowed to be there.” Even after explaining that she did not practice in New York, and was not involved in any cases against MSG, she was still forced out of the venue. While her daughter, the rest of her Girl Scout troop, and all the other parents who made the trek to the concert got to enjoy the show, Conlan was barred because of a petty grievance involving a case she was nowhere near. | >
> | Additionally, the argument that this was a policy arising chiefly from spite would also be unlikely to yield a victory for the banned attorneys. The California Law Review found a malicious motive plays no role in determining one’s civil liability. Therefore, the strength of the lawyers’ arguments would need to be drawn from one of the above sources. | | | | |
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< | Lack of good-faith notification
Attorneys with no pending or ongoing litigation have no reason to suspect anything may be amiss when purchasing a ticket. Also, depending on the size and scale of one’s practice, keeping up with every case being taken is not feasible. Notifications confirming the existence of the list are not easily visible, to the extent they are visible at all, when purchasing a ticket. Attorneys are removed from the venue at all stages of the process, with one recalling being taken out after reaching his seat and making it through a metal detector and area with trained dogs. This person was clearly not a safety concern, as, were they attempting to do harm, one of these measures would have easily detected their devices for executing such a plan. Additionally, after a ticket has been scanned, it cannot be sold to someone else, rendering the good-faith purchaser with no money and no entertainment. | | | | |
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< | NYC authority figures’ stances and Dolan’s response
The New York Attorney General launched a civil suit in response to the bans. § 40-B of NYC’s code prohibits “wrongful refusal of admission to and ejection from places of public entertainment and amusement,” and is being used to combat Dolan’s petty grievance. Additionally, allowing such a policy to stay in place risks MSG being able to shield itself from many future lawsuits, as attorneys will not want to be excluded.
The NY State Senate is looking to pass a bill allowing anyone with a valid ticket to enter a public place, as another method of combatting the ban within the legal sphere. This bill is intended to stop the use of surveillance for non-security purposes. The State Liquor Association threatened MSG’s liquor license, as an attempt to hurt the company’s bottom line.
Dolan responded telling politicians to solve actual problems, as opposed to advocating on behalf of “money grabbers whose business is motivated by self-promotion and who capitalize on the misfortune of others.” He also threatened to display a picture, email, and phone number of SLA CEO Sharif Kabir in the arena, and urge fans to harass him. | | |
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