Effort being made to toss out NFL fan code of conduct

SAN DIEGO - A showdown sparked by the use of the middle finger at a San Diego Chargers game has led to a legal first -- an attempt to toss out the fan code of conduct at an NFL stadium, which allows teams to eject fans for certain behaviors.

As the Chargers were dominating the Kansas City Chiefs at Qualcomm Stadium in a 2009 game, San Diegan Jason Ensign, who is a Chiefs fan, told 10News nearby Bolts fans continued to curse at him.

He said he gave fans the middle finger, but was then grabbed by security. In the ensuing tussle, he was arrested on battery charges.

A judge dismissed the charges, ruling he had a First Amendment right to use the gesture, and then found him factually innocent.

Still, Ensign lost his nursing job and sued the city of San Diego in federal court.

His attorney, Mary Frances Prevost, has filed for an injunction to toss out the fan code of conduct, in place since 2008.

"I can say to the judge that I have a completely innocent client that was put through the ringer because of this fan code of conduct," said Prevost.

Based on the NFL code of conduct, the Qualcomm Stadium policy bans a host of behaviors, including obscene and offensive language.

"It also talks about unruly or inconsiderate behavior. That has a different definition for anyone who reads it," said Prevost.

Prevost argues the code is too vague and too broad, trouncing on protected speech like the middle finger.

"Cursing is allowed in public forums and Qualcomm [Stadium] is a public forum," said Prevost.

In court documents, the NFL has defended the code, saying it has reduced fan incidents.

Joseph Hess, who worked security at Qualcomm Stadium for two seasons before the code was put in place, said, "There are going to be kids at the game and people want to protect them from obscenities and profanities."

Hess also sees the other side of the argument, telling 10News, "Him giving the bird -- I honestly do believe it's free speech."

The San Diego City Attorney's Office has yet to release a statement, but several legal experts say they could try to argue the middle finger equals "fighting words" and not protected speech.

The judge in Ensign's original trial later issued a ruling backtracking on the free speech justification, but both sides disagree on how much of a backtrack.

A hearing on the injunction request could come this summer.

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