Contracts And Poker: Political Speech At The Table

Can you be expelled from a poker tournament because the clothes you are wearing make a political statement?

I’ve heard many people claim that they have a right to free speech and that therefore a casino cannot take any action against them for their political statements, which might be made through a button or an article of clothing. Let’s start with the source of that right.

The U.S. Constitution states in the First Amendment, “Congress shall make no law … abridging the freedom of speech.” Through the 14th Amendment, this right also applies to state governments. State constitutions, which we sometimes forget about, also generally provide expressly that you have the right to free speech.

What that means is that the government cannot take action against you based on your speech. But it does not mean that a private party cannot take away your freedom of speech or penalize you for your speech. As unions often tell their members, when you punch the clock to work for your employer, you leave the Constitution at the door.

Of course, there are limits. As Supreme Court Justice Oliver Wendell Holmes famously noted, “The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic." Other limits include copyright infringement, defamation, hate speech, harassment, and “fighting words.”

The latter indicates the problem of speech that is directed at inciting or producing imminent lawless action or is likely to incite or produce such action. The war on terrorism has also created limits on speech, but the limits are narrowly interpreted and the prohibited speech usually involves “material support” for terrorist groups.

The ongoing Israeli-Palestinian conflict has recently tested the limits of free speech, particularly on college campuses. Here it may be important to distinguish between public institutions, where the Constitutional rights apply, and private institutions, which are free to set their own standards. On many of the latter campuses, administrators have been criticized and, in some cases, have had to resign for not going far enough to crack down on speech that crossed a line.

This conflict has recently reached the poker community, when Justin Bonomo was threatened with disqualification from the WSOP Paradise Super Main Event for wearing a keffiyeh, a garment that expresses sympathy for the Palestinian cause.

Another player likened Bonomo’s speech to supporting terrorism, but what he did falls far short of violating any anti-terrorism law. (Incidentally, lying, exaggerating, and expressing opinions is generally protected speech, so one is free to say such things about another’s speech as long as the comments don’t rise to the level of defamation.)

The WSOP responded to the controversy by issuing this statement:

The request for removal of Mr. Bonomo’s keffiyeh once he reached the TV production table was simply a matter of broadcast clearance. Our future distribution platforms for Super Main Event do not allow garments deemed controversial or political in nature.

While this may be true, it sounds like passing the buck. It is quite possible that the WSOP’s contract with distributors contains such a provision and it could be invoked to keep the broadcast from being distributed. But the WSOP itself has a rule that is applicable to this situation.

[The following is taken from the 2024 WSOP Tournament Rules and applies only to events at the Paris and Horseshoe (the “Host Properties”), but I am presuming that similar language is used for WSOP events held elsewhere.] Section V is captioned “Participant Likeness and Image.” Rule 54.c. enumerates a number of specific areas in which what a participant wears is regulated and Rule 54.d. contains this general language:

Host Properties always reserve the right to impose a ban on any apparel deemed objectionable by Host Properties, in its sole and absolute discretion. Host Properties reserve the right to refuse entry or continued participation in an Event to any Participant who does not comply with the aforementioned apparel rules.

While the WSOP clearly had the authority to take this action under this rule, as with any rule that gives a party broad discretion to act, it is in the best interests of the WSOP to apply such a rule fairly and impartially.

Having the power to do something does not always mean it is good judgment to use that power. It does not seem fair to allow a player to wear the clothing during the first days of a tournament and then threaten them with expulsion well into the tournament. And it does not seem impartial to apply the rule to one objectionable garment and not another, or to one player and not another.

This particular situation was resolved when Bonomo removed the garment prior to the televised final table, instead opting to declare “Free Palestine” on the broadcast after being eliminated in seventh place, but the controversy about political speech at the poker table will continue.

As Card Player has reported, there have been many previous instances of political speech that were not addressed by the tournament hosts. (But I can recall one instance where Dan Harrington was forced to put duct tape over the B in his Boston Red Sox cap.)

Often enforcement of a rule serves a useful purpose by warning others not to repeat the behavior. But after this incident, I suspect that poker players, being generally independent-minded and wary of authority, are likely to step up their attempts to provoke the powers that be rather than curtail them. I predict that we have not seen the end of this issue.

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at [email protected].

Related Articles

Bonomo Threatened With DQ For Palestinian Scarf

Rule Changes: WSOP Bans Devices, RTA

Is Poker Easy To Learn? Which Game Has The Most Rules?

Most Viewed Articles