USTA’s Bad Call on Free Speech at the US Open

I am a tennis nut. I play about four times a week. My first job ever was as a ballboy at the U.S. Open at Forest Hills, just a 25 minute walk from where I grew up. I ballboyed in front of 15,000 people at Madison Square Garden in a match between Rod Laver and Pancho Gonzales, then the two best players in the world. (I was able to hit some balls before the pros came out, and when they did, and saw us playing, I asked the world #3 Andres Gimeno for some advice: “Give up the game” he responded.) I played at a tennis camp with Don Budge and Bobby Riggs (who asked if my pregnant wife was having a boy or girl so he could make book on it). I was the lawyer for the Family Circle Cup women’s tournament and gave the women’s tour antitrust counsel. And I’ve played in charity , press and pro-am events with the likes of Mayor David Dinkins, Rosie Casals, Roy Emerson and Vitas Gerulaitis.

As you know, I am also a First Amendment partisan. The combination of these two passions is what makes me so terribly disgusted at the actions of the U.S. Tennis Association (USTA) in connection with Donald Trump’s attendance at the finals of the US Open a week ago. I should start by saying I’ve always respected the USTA, and believe it is far more honest and well-meaning than the other sports alphabet soups: FIFA, the NCAA and the Olympic Committee have all been historically corrupt and self-serving organizations.

But what the USTA did re Trump is a very sad and dangerous sign of the times – and, in particular of where the First Amendment stands today. In brief, the USTA asked the broadcast media to censor any possible protests or other reactions to the President’s presence at the Open. The USTA’s email said that during the opening anthem ceremony, “We ask all broadcasters to refrain from showcasing any disruptions or reactions in response to the President’s attendance…” In other words, as the respected tennis writer Ben Rothenberg wrote, the USTA was being complicit “in broadcasting Trump’s desired stagecraft” and avoiding any possible negative crowd reaction. Now before I get to why I am so disturbed by that attempt at a prior restraint , albeit perhaps not sought by Government but by the powerful, let’s first look at another by-product of Trump’s visit. And I’m not talking about the hundreds of thousands, if not millions, of dollars of taxpayer money spent on getting the President ,his many aides – Pat Bondi and Karoline Leavitt were among his seatmates – and his security detail to and from Flushing Meadows in Queens where the Open is contested.

Because of the President’s visit, security had to be enhanced. Now as one who has attended scores of US Opens (though never a finals), I can attest that the normal security check is pretty perfunctory, though you do go through a metal detector, which presumably is an effective device. But with the President present, security was heightened. All spectators had to go through two more security checks and screening filters. The result was a throng of thousands waiting to get into the stadium, most of whom had paid between $500-1500, if not more, to get in. Perhaps worse, this led to huge delays: at the 2pm scheduled start time, the stadium was less than half full – the other thousands still jostling to try to squeeze in. So the USTA delayed the first serve till 2:48, an inconvenience to the spectators for sure, but more than a slight bother for the two finalists, whose precise warm-up schedule hinges on when the match is to start. I understand that not much can be altered in this situation, but it smacks me as the way things are done by royalty – inconveniencing many thousands for the pleasure of one doesn’t sound very democratic.

But back to the attempted prior restraint. In sending such a lamentable email, the USTA committed an unforced error: forcing broadcasters to sacrifice their credibility by shielding a President from the sound of public disapproval. Did the USTA’s outrageous demand come from the White House, Rolex, who was Trump’s host, or the USTA itself? We do not know. After a brouhaha ensued, the White House denied it had anything to do with it. But given that Trump told 25,000 untruths during his first term, I wouldn’t presume that position to be either true or false. To my knowledge, Rolex, a long-time tennis sponsor, hasn’t commented (though it well might have sought to curry favor with Trump to lower the high tariffs he has imposed on imports from Switzerland, such as on its watches). But even more disturbing is the possibility that the USTA did this on its own – that as the presenter of a worldwide news event, an important Grand Slam tennis championship, it thought it had the right and the legitimacy to censor the media coverage of the President’s attendance and the reaction of the 20,000 spectators at the stadium.

In these polarized times, gauging public opinion of Trump is a noteworthy endeavor. To be sure, a New York blue-area tennis crowd is not a random sample, but if the crowd would have loudly cheered the commander-in-chief, that certainly would have been news and Trump clearly would have bragged about it. (Typically, afterwards he said he was well treated by the crowd, although the evidence indicated the opposite.) But the sad point is that in this authoritarian environment the USTA thought it was perfectly acceptable to be able to control what would be reported about the encounter, and to keep from the public any negative reaction. One might say, a double fault. We wouldn’t be surprised if this were done by the powerful in Russia, Hungary, Turkey or the Philippines, but we really wouldn’t expect it in our country. Tragically, this shows how much Trump’s bullying of so many of our institutions having nothing at all to do with governing – from late night tv hosts to the Kennedy Center and from displays at the Smithsonian to local police departments – shapes behavior across all walks of life.

(That the perpetrator of this censorship strategy was the USTA is particularly surprising as the organization has had a fairly liberal bent in recent years. Indeed, during the tournament this year, it has commemorated the 75th anniversary of Althea Gibson as the first Black player to compete, noted the 50th anniversary of Arthur Ashe’s winning Wimbledon, held a Pride Day celebrating the LGBTQ+ community, and launched a partnership with Venus and Serena Williams to support young people from under-resourced communities with academic and career opportunities to improve their lives on and off the court. It also was the first Grand Slam tournament to award equal prize money to women and men.)

Sadly, ABC, which televised the finals nationally, heeded the USTA’s request. It showed a few seconds of Trump saluting during the national anthem, but made no mention of the crowd reaction, exactly what viewers would have been most interested in. Later when the Jumbotron in the stadium showed the President, none of the announcers made any mention of the cascade of boos which emanated from the stands. (interestingly, Trump was seated in a box directly under signage which heralded that this was Arthur Ashe Stadium, named after the highly respected Black player, social justice activist and historian. Who knows if that connection was intentional, probably not, but it was somewhat ironic that the President was directly under Ashe’s name in videos and photos, since he has taken so many actions to belittle and harm the very community which Ashe represented.

Since I’m not a broadcaster under the aegis of the USTA, I guess I can report on what actually happened. I rely on the Times, which, I can attest, tries to be as accurate as possible on visible and controversial item like this. Its headline was “Trump Is Met With Mostly Boos at U.S. Open as Security Delays a Match.” The article specified that during the anthem when Trump was shown on stadium screens, “attendees unleashed a loud round of boos, with some cheers mixed in.” And the Jumbotron again showed Trump after the 1st set concluded, and then he was “met with louder, more sustained booing, as well as some cheers.” As best as I could tell, the ABC live telecast, under contract with the USTA, commented not at all about any of this. (To his credit, at the end of the match, Trump stayed in his seat – unlike a few months ago when at the FIFA Club World Cup at the end of the final game he went down on the field to give the winning trophy and then insinuated himself with the Chelsea team in its victory celebration.)

It’s said that outsiders are the best and most objective observers of another country, hence De Tocqueville’s Democracy in America still stands as the best portrayal of our nation. This is the Guardian’s view of all this: “The USTA’s censorship of Trump dissent at the US Open is cowardly, hypocritical and un-American.”

Opinions expressed in this column are those of the author and not of the MLRC. Comments welcome – email gfreeman@medialaw.org.