02/11/2014 12:39 pm ET Updated Apr 13, 2014

Fighting Words in Lubbock

The sports world is reeling from the Saturday night incident in which Oklahoma State basketball star Marcus Smart, with six seconds remaining, pushed a Texas Tech fan. Smart ended up a few rows into the crowd after an attempted block and started back toward the court only to turn around and push a fan, apparently hearing a comment from him. Smart received a technical foul, six seconds elapsed and Texas Tech pulled off the upset 65-61. Smart was escorted to the locker room. On Sunday, the Big 12 Conference suspended Smart for three games. Smart delivered an apology, "This is not how I was raised... I'm taking full responsibility. No fingers pointing - this is all upon me."

On Saturday night the sports broadcasting world was breathless with its dithering over the incident. Would Smart be suspended, they asked. He was such a good kid and this was so out of character, they asserted. What does this incident mean for the future of Cowboy basketball, this season and even coach Travis Ford's job security? The sports anchors milked the tape and its pathos in furtherance of their journalistic pretenses.

While these facts are interesting, these are the wrong questions. The man who was shoved is Jeff Orr, recognized in 2010 as the "number one fan" for Texas Tech who travels tens of thousands of miles per year to root for the men's basketball team. He is a 1983 graduate of the university and an air traffic controller. He too issued an apology on Sunday to all and sundry, including Marcus Smart. He states, "My actions last night were inappropriate and do not reflect myself or Texas Tech... I regret calling Mr. Smart a 'piece of crap' but I want to make it known that I did not use a racial slur of any kind."

The right questions are: Did Smart have a right to respond to Orr? Is Orr to be believed in his claims about the contents of his statement? Regardless of Orr's truthfulness, are there limits to behavior by fans or even "super fans" at a sporting event? Based on his statement, is Orr liable for prosecution under Texas law? Why does Orr get the courtesy of "voluntarily" skipping Texas Tech basketball games for the balance of the season?

There are limits to freedom of speech. You cannot engage in lewd, profane or libelous speech. And you cannot use "fighting words" in a face-to-face interaction with the intended target. In Chaplinsky v. New Hampshire (1942), the Supreme Court held that freedom of speech provisions of the Constitution are no protection if you use "insulting or 'fighting words' - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." In 1942 Chaplinsky, while leafleting in a downtown area to promote his religion, called a local police official a "God damned racketeer," among other epithets. He was charged under a New Hampshire law that prohibits calling anyone an offensive or derisive name in a public place. Chaplinsky defended himself on the grounds of freedom of religion and freedom of speech. The Court held that neither acts of provocation nor the truth of the claims was a defense. Justice Murphy set a clear standard for "fighting words:" "such words, as ordinary men know, are likely to cause a fight."

Mr. Orr, by his own admission, called Marcus Smart a "piece of crap" from a distance of no more than five feet. How would the average individual respond when insulted in that way? It would seem that Mr. Orr got off light with a shove. In a telling commentary on modern American life, Mr. Orr goes out of his way to assert that he used no racial epithets in addressing Smart. Smart, on the other hand, asserts that he did. It is ironic that in dissecting the event the sportscasters spent so much time defending Marcus Smart's character; they used every cliché but "he's a credit to his race." The character that seems to warrant investigation is that of Mr. Orr. What motivates a 50 year-old man to insult and revile a teenager?

Mr. Orr's statement of remorse would have you believe that his Saturday night actions were a one-off; he was swept away by his super-fan passions. Subsequent tweets from Texas A&M player Brian Davis and John Lucas III suggest otherwise. Video of a 2010 game shows Orr, seated two rows behind the basket, making an obscene arm gesture and bizarre facial grimaces while yelling at Davis after he dunks on an inbounds play. Davis tweeted, "The same guy talked crazy to me for four years." Lucas had remembered Orr over more than a decade from his 2001-2005 career at Baylor and Oklahoma State and observed, "and he is a grown man talking to kids the way he does."

The penumbra of race hangs over this case: all three players are black and Mr. Orr is white. Texas Tech has had race relations problems in the past. Police officers in Lubbock, the home of Texas Tech, detained three people associated with the Hampton University women's basketball team for four to six hours in 1998. While in town for a game, they were accused of attempting a confidence swindle in the parking lot of a local Wal-Mart. The three were eventually released and eyewitness identifications recanted. There was no apology from local government or university officials. A federal lawsuit was filed; it was eventually dismissed and the event characterized as "an unfortunate incident."

Smart has faced up to his errors and will pay the price. The Big 12 Conference has seen to that. Will Mr. Orr's punishment be simply his self-imposed exile for the balance of the season? Does Texas Tech have any interest in reining in its super-fans? Will local prosecutors charge Mr. Orr under the appropriate Texas statutes? Time will tell.