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. 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.

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 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.

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

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.

What was the legal question to which Yick Wo v. Hopkins was the answer? Why is no provision of New York law cited or discussed? Why is a 1938 comment in the Berkeley law review offered as authority for the content of New York law?