In December 2022, a family law attorney took her daughter to see the Rockettes at Radio City Music Hall.
She had purchased tickets. She had done nothing wrong in any ordinary sense of that phrase. She arrived at the venue, and a facial recognition system identified her. She was ejected before the performance began.
Her law firm had active litigation against Madison Square Garden Entertainment. That was sufficient.
The attorney’s name was reported by the New York Times. MSG confirmed the policy and confirmed the practice. MSG’s explanation was direct: any attorney at a firm with active litigation against the company is unwelcome in MSG venues, not for anything they have personally done, not for any conduct at the venue, but for the professional association that their firm’s legal work creates. The facial recognition system is the enforcement mechanism. It is how MSG ensures that a policy about an entire professional category can be applied at scale, in real time, at the door.
The Fourth Amendment does not apply. MSG is a private actor. There is no constitutional protection at issue in what happened to that attorney and her daughter. The structural question, the one that connects this event to a warning written in 1787, is not whether a law was broken. It is what kind of power can do this.
The System
MSG Entertainment operates Madison Square Garden, Radio City Music Hall, the Beacon Theatre, and the Chicago Theatre, among other major entertainment venues. In the New York City market, the largest in the country for live entertainment, MSG holds a position that is, in practice, close to a monopoly on major indoor live events. The Garden is the premier arena in the city. Radio City is its most famous concert hall. The Beacon Theatre is among the most prestigious mid-capacity venues in the country.
The company’s facial recognition deployment was not secret, but its application to attorneys became publicly known only after the ejections began generating reports in 2022. MSG’s system works at the point of entry: cameras at venue entrances capture facial images, which are compared in real time against a database. The database is not limited to individuals who have behaved disruptively. It includes a category of person defined entirely by their professional affiliation and their firm’s legal activity.
The policy, as MSG described it, is essentially unlimited in scope within its own terms: any attorney whose firm has filed litigation against MSG is subject to the ban, regardless of whether the attorney has any connection to the specific case, regardless of the nature of the litigation, regardless of whether the attorney has ever personally engaged with the company at all. An associate at a firm that took a personal injury case against a MSG-owned venue could be ejected from a concert across the country.
The New York Attorney General’s office investigated. Letitia James found the practice legal. Her office raised concerns, a statement that means something less than a legal conclusion that a remedy exists. The state legislature considered restrictions on the practice. It did not pass them.
The attorney went home. Her daughter missed the Rockettes.
The Centinel Mechanism
Centinel, the Pennsylvania Anti-Federalist writing under a pseudonym in October 1787, made an argument that was not primarily about government. His concern was with concentrated private power, and his warning was precise: private entities at sufficient scale could produce coercive effects indistinguishable from tyranny, not through law, not through government authority, but through the practical capacity to determine who participates in economic and social life on what terms.
He was writing in a world without facial recognition databases. He was writing about a structural condition that the technology makes visible but did not create: when a private entity achieves sufficient concentration over a category of experience, a market, a resource, a venue, a platform, it acquires the power to exclude, condition, and coerce without any of the democratic accountability mechanisms that constrain government authority.
MSG’s enforcement system is Centinel’s argument at operational scale.
Major live entertainment in New York City is not a luxury that can be easily substituted. For large portions of the professional population, attendance at major concerts, sporting events, theatrical performances, and cultural events is part of ordinary professional and social life, client entertainment, family occasions, cultural participation. Being banned from every MSG venue in the market is not a trivial inconvenience. It is exclusion from a significant category of public life in the country’s largest city.
That exclusion is being enforced based on a professional affiliation. Not personal conduct. Not anything the individual has done at a venue. The attorney ejected from Radio City had represented clients in family law matters. Her firm had taken litigation against MSG. MSG determined that this made her unwelcome in any of its venues, and deployed a biometric identification system to enforce that determination.
The government cannot do this. A government agency that maintained a facial recognition database of attorneys whose clients had sued it and used that database to deny those attorneys access to public facilities would be in immediate and obvious constitutional violation. The government’s power to exclude from public spaces is constrained by due process, equal protection, and the First Amendment’s protection of legal activity including the right to petition courts.
MSG has no equivalent constraint. It is a private property owner. Its right to exclude is, at law, essentially unlimited.
The Chilling Effect
The MSG story is frequently framed as a surveillance story. It is more precisely a story about what the surveillance enables.
Facial recognition technology deployed by a government to identify attorneys who had filed cases against it would be recognized immediately as an attempt to chill legal representation, to impose a cost on the professional activity of bringing legal claims, structured to make attorneys think twice before taking cases against the identified actor. That chilling effect is constitutionally significant when a government actor produces it. Courts have struck down government conduct that imposes costs on the exercise of constitutional rights even when the conduct does not formally prohibit anything.
When a private actor produces the same chilling effect, the constitutional framework is silent.
The effect exists regardless. After the MSG ejections became public, attorneys in New York began disclosing MSG bans to clients as a conflict issue. The question, have you or your firm ever had litigation against MSG?, became a due diligence item, because an affirmative answer creates a conflict between the attorney’s professional interests (access to major entertainment venues) and the client’s interests (the legal representation they are entitled to receive). Some attorneys, according to reporting at the time, declined to take MSG-related cases rather than risk the ban.
That is a chilling effect on legal representation. It is the product of a private entity’s deliberate policy to impose professional consequences on individuals who exercise their legal right to bring litigation. And because the actor is private, the constitutional framework that would prohibit a government from doing exactly the same thing does not engage.
The Federal Farmer, writing in October 1787, made the argument that has become the organizing principle of this category: rights on paper are not rights in practice when the structural mechanisms that make rights operative are absent. The right to legal representation exists. The right to access courts exists. The right to bring litigation against powerful entities exists. None of those rights protect the attorney from professional exclusion by the entity that is being sued, when that exclusion is enforced by a private actor using technology the law does not regulate.
Both Parties, One Direction
The MSG facial recognition practice emerged and was contested under a Democratic mayor and a Democratic attorney general in a Democratic-majority state legislature. The Democratic AG found the practice legal. The Democratic-controlled legislature considered restrictions and did not enact them.
This is not a partisan observation. It is evidence that the regulatory gap here is not a function of which party holds office. The absence of a legal framework governing private biometric surveillance, its collection, its retention, its use as an instrument of economic exclusion, is a bipartisan absence. Republicans have generally opposed privacy regulation as interference with property rights and technology markets. Democrats have proposed more comprehensive frameworks and have been consistently unable to pass them.
The result across both parties: no federal statute governing private facial recognition databases, no federal protection against professional blacklisting enforced through biometric identification, no legal mechanism by which the family law attorney ejected with her daughter had any remedy beyond the social embarrassment MSG incurred from the press coverage.
The press coverage is not nothing. Public attention on the practice may restrain future applications. But it is not a structural protection. The next deployment of a similar system by a different private entity with similar market concentration will begin the same cycle: reporting, attorney general concern, legislative consideration, legislative inaction.
The Bouncer Objection
The strongest counter-argument to the concern this story raises is the property rights framework: MSG is a private property owner. Private property owners have an essentially unlimited right to exclude. A bouncer who keeps a list of unwanted patrons is not constitutionally remarkable. A facial recognition system is a more efficient version of the same thing, the same authority, implemented at scale.
The analogy is accurate as far as it goes. It stops short in two places.
First, scale changes the character of exclusion. A local bar that bans an individual patron exercises a right that is trivially worked around, other bars exist, other options are available. MSG exercises exclusion across every major entertainment venue in the country’s largest city, in a market where MSG holds a position close to monopoly. The practical weight of the exclusion is not comparable. Centinel’s warning was specifically about this, the point at which concentrated private power produces coercive effects that cannot be characterized as mere inconvenience. The question is not whether MSG has the right to exclude. It is what kind of social harm the exercise of that right at monopoly scale produces.
Second, the specific basis for exclusion matters. A bouncer keeping out a patron who was disruptive last visit is exercising a judgment about past conduct. MSG’s system excludes attorneys for professional affiliation, for the firm they work at, the cases their colleagues have taken, the legal claims their clients have pursued against MSG in court. The exclusion is targeted not at conduct in the venue but at professional activity that the law explicitly protects and that the constitutional system depends on: the right to bring legal claims. An exclusion policy specifically designed to impose costs on that activity is qualitatively different from a general trespass list, even if both are formally within a property owner’s legal authority.
The bouncer analogy describes the legal right accurately. It does not describe the structural consequence.
The Founding Warning
Brutus, writing in October 1787, argued that concentrated power, public or private, produces accountability deficits that formal rights cannot address. His specific concern was governmental, but the structural logic is general: when the entity making decisions about who participates in public life on what terms is not subject to democratic accountability, the affected parties have no structural remedy. Courts can sometimes provide individual remedies. Social pressure can sometimes produce behavioral change. Neither is the equivalent of the constitutional accountability mechanisms that apply to government actors.
MSG is not a government. It has no obligation to follow due process before adding a name to its biometric database. It has no obligation to notify the people it bans. It has no obligation to provide a hearing, a reason, or an appeal mechanism. The family law attorney found out she was banned when the facial recognition system flagged her at the door of Radio City Music Hall.
What the founding framework provided, with respect to government, was not merely formal rights but structural mechanisms for enforcing them: courts with jurisdiction, standing to bring claims, remedies that provided real relief, electoral accountability for the officials who made the decisions. Centinel’s warning was that private power at sufficient scale could produce the same coercive conditions without any of those mechanisms.
The facial recognition system at the entrance to Radio City Music Hall is a data point. The structural condition it illustrates is the one Centinel named: a private entity with sufficient market power over a category of public experience, deploying technology that no law currently regulates, to enforce a policy that no court has found it has any obligation to justify.
That the attorney has no remedy is not a legal technicality. It is the substance of the problem.