Brothers File First Amendment Lawsuit In 'You F-ing Suck' Case At Giants-49ers Game

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Two brothers, Giants fans, filed a First Amendment lawsuit last week against the City of Santa Clara, the Santa Clara Stadium Authority and a bunch of other entities plus the cops who yanked them out of the first row at Levi’s Stadium during a 2017 Giants-49ers game. At the center of the lawsuit is the claim that the brothers should be allowed to tell Giants players they “f-ing suck” and middle finger the players.
I’m not some lawyer who dabbles in First Amendment cases, but this could be a tough road for Patrick and Kyle Flynn. I’m not aware of another case where a couple brothers get a little sauced and start f-bombing players and then expect the Constitution to protect them. It’s definitely unique and I’m all-in for the content and a great lawsuit. goes way in-depth on the legal ramifications and how the case might go.
At stake here: one day the Constitution could protect your ability to tell your team the “f-ing suck.”
From the lawsuit:

During the second half of the game, Patrick Flynn and Kyle Flynn were flipping off the Giants players and yelling “You f-ing suck” at them. Cusimano approached Patrick Flynn and Kyle Flynn and told them to quit flipping off the players and to sit down. Patrick Flynn and Kyle Flynn acknowledged and complied with Cusimano’s request. Neither Patrick Flynn, nor Kyle Flynn, were warned that further similar behavior would lead to ejection or arrest. 27.
Later in the half, after the 49ers scored again, Patrick Flynn and Kyle Flynn stood up, approached the railing separating the stands from the field, and again flipped off the Giants players while screaming “You f-ing suck!” 28.
Plaintiffs are informed and believe, and thereon allege, that Cusimano determined the actions of Patrick Flynn and Kyle Flynn to be a violation of the Levi’s Stadium Code of Conduct. Cusimano notified Stadium Communications that he needed officers to eject Patrick Flynn and Kyle Flynn, although Cusimano did not provide a basis for the ejection to Stadium Communications. 29. Plaintiffs are informed and believe, and thereon allege, that it was not, and is not, a crime to stand up, flip off the players on the field (i.e., “flip the bird” or extend one’s middle finger outward), and yell “You f-ing suck!”
Therefore, defendants did not have reasonable suspicion to believe plaintiffs were engaged in or about to be engaged in activity relating to crime. Moreover, defendants did not have probable cause to arrest plaintiffs for committing a crime.

Now for the First Amendment claim:

Patrick Flynn’s and Kyle Flynn’s comments and gestures directed towards the New York Giants players, as well as Patrick Flynn’s decision to “take a knee,” were protected First Amendment expression. Patrick Flynn’s and Kyle Flynn’s exercise of their protected First Amendment rights angered defendants.
Patrick Flynn and Kyle Flynn are informed and believe, and thereon allege, that the officers subjected them to the above-described treatment in retaliation for, and as punishment for, their exercise of their protected free speech rights, and to deter them from asserting their First Amendment rights in the future.
Patrick Flynn and Kyle Flynn are informed and believe, and thereon allege, that such deterrence, retaliation, and punishment were substantial motivating factors in the defendant officers’ conduct alleged herein. In doing the acts complained of herein, defendants deprived Patrick Flynn and Kyle Flynn of their rights under the First and Fourteenth Amendments to the United States Constitution.

Now let’s take a look at the Levi’s Stadium Code of Conduct from the 49ers website:


  • Obscene or abusive language and/or behavior

  • Fighting, taunting, or threatening remarks and/or gestures

  • Smoking (in non-designated smoking areas)

  • Gang activity, including, but not limited to, wearing or displaying gang-affiliated clothing or other indicia of affiliation

  • Offensive clothing

  • Any distraction to the progress of the game or event

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