Lawyers: Burton ban legal
By CRISTINA KUMKA Herald Staff | October 29,2008
Private ski resorts around the country are restricting their employees from using two new lines of Burton snowboards featuring nudity and self-mutilation but the public will largely be unaffected, resort representatives say.
Although attorneys say the resorts can ban the boards from their mountains entirely without viable legal repercussions, resorts don't intend to limit what the public chooses to thrash with.
This week, Vermont's Smuggler's Notch Resort, Sugarbush and five of Colorado's Vail Resorts have deemed Burton's "Love" and "Primo" boards "inappropriate" and "offensive" to their guests, forbidding employees from using the boards when representing the ski resort, according to statements made by public relations officials.
But if the resorts wanted to, they could take it a step further by not allowing the public to use the boards on their mountains, according to the American Civil Liberties Union of Vermont and attorneys specializing in constitutional law.
Generally, a privately owned ski resort can restrict what gear its employees wear while on duty on the mountain and what private citizens wear before they ride a lift, according to Greg Johnson, a professor of law at Vermont Law School.
"Whatever choice the ski resort may make wouldn't be subject to a First Amendment freedom of expression challenge," Johnson said.
According to Allen Gilbert, executive director of the ACLU of Vermont, the "Constitution protects people by action taken by the government, not by action taken by a private entity."
But because of a gray area in the law, Gilbert questioned if a restriction imposed on the public could possibly land a resort in legal hot water.
"I would want to know more details on the angle of ski resorts leasing some or all of their land from the state and the U.S. Forest Service," he said.
Nine of 20 ski resorts in Vermont lease state — or federally owned land — according to the Vermont Ski Areas Association.
According to Vermont Law School Professor Peter Teachout, imposing freedom of expression on public land could be presented as a valid argument, but it's not likely to hold up in court.
"There have been a few cases where the courts have said, through the State Action Doctrine included in the 14th Amendment, that no state shall deprive any person of life, liberty, or property without due course of law," said Teachout, who specializes in constitutional law.
Although the cases were limited to state entities, Teachout said, there were some exceptions.
In the 1961 U.S. Supreme Court case Burton vs. Willington Parking Authority, a restaurant that rented a building from a public authority was deemed to have a "mutually beneficial economic relationship" with the public body and was ordered by the federal government to abide by the Constitution after it tried to discriminate against African Americans, according to Teachout.
"It may be possible if I was representing someone's free speech rights or Burton on a ski resort issue, I would rely on the restaurant case," he said.
But because it may be hard for someone to prove how deep the relationship between the state and private ski resorts are and because states can impose limits on their land too, a snowboarder's freedom of expression case seems like an unlikely victory.
"Would the ski area be seen as a traditional public forum for expression even if it were fully owned by the state?" Gilbert said.
"Would it still be seen as a public forum like a street or a public park? Primarily ski resorts aren't in that category," he said.
For now, ski resorts said they don't intend to take any formal action to limit what boards the public uses, but they will publicly discourage using the boards.
"We just yesterday had a rally with our ski school and explained to them this statement that if they owned such a board, they would not be allowed to use it with our guests," said Barbara Thomke of Smuggler's Notch.
Thomke said the resort did what it thought was the "appropriate thing to do" in light of its family image, but it didn't know what it would to limit the public's use of the boards, except to address each instance on a "case by case" basis.
"We don't know if it's legal to do something like that," she said. "A large extent of their resort is on public land. We're struggling with that issue now."
Jen Brown, spokeswoman for one of Vail's resorts, Beaver Creek, said the ban on the use of Burton boards is "specific to employees on duty."
Sugarbush Resort in Warren, also imposing an employee ban, said they're restricted, by any means, from imposing rules on the public.
"Being on federal land we can't restrict the public from using these boards because we have to provide fair and free access to all," said JJ Toland, communications director.
"But we can control what our employees wear and what we can sell in our shops."
Meanwhile, Burton stands by their product — about 3,000 "Love" boards currently on the market around the world —and one local ski shop owner, who asked not to be named because he said he was "done" with the controversy, said all the publicity is fueling sales of the risqué boards.
According to Burton Chief Executive Officer Laurent Potdevin, "Burton is a global company, and these boards have been embraced and are a success around the world. We are not breaking any laws by creating these boards, and it is our sincere belief that these graphics do not condone or encourage violence towards women in any way. ... We will keep these boards in the market and have no intention of recalling them."
Lezlee Sprenger, an Essex resident and mother of two young snowboarders, said the Burton board controversy is giving the company free publicity, but it's also giving mothers like her an opportunity they normally wouldn't have had.
"The boards reflect something bigger," Sprenger said.
"Where do our young men get the message of violence? They are being fed it on TV and now on the mountain. As a parent, I could turn off the TV."
Sprenger said her activism against the boards was not about curtailing freedom of speech, but rather, raising awareness of how that freedom must be used wisely.
"As a community, this is an opportunity to start a dialogue on the effects of the objectification of women," she said.
Contact Cristina Kumka at firstname.lastname@example.org.