The NFL rule requiring players to stand for the National Anthem could be a First Amendment violation

[EffieBlack]

Business decisions by private organizations norrmally don’t trigger First Amendment challenges, HOWEVER ...

It can be reasonably argued that the NFL is carrying out explicit instructions from the president of the United States and, as such, their decision constitutes “state action” sufficient to put the First Amendment into play.

The U.S. Supreme Court has repeatedly and conclusively held that a private entity can be found to engage in “state action” and, thus subject to provisions of the Constitution, including the First Amendment. Among other things, the Court has ruled that, if the government coerces, influences, or encourages the performance of the act, it is state action. E.g., Blum v. Yaretsky, 457 U.S. 991 (1982); Rendell-Baker v. Kohn, 457 U.S. 830 (1982). “A State normally can be held responsible for a private decision ... when it has exercised coercive power or has provided such significant encouragement that the choice must in law be deemed to be that of the State.” Blum at 1003-1005.

There is no question that, in this instance, the government, through its chief executive, has coerced, influenced and encouraged the NFL to require players to stand during the National Anthem.

We’ve got receipts.

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

[Thomas Hurt]

1. Hope they get sued, might teach them not to listen to the fool's self important edicts.

[PoliticAverse]

2. They are apparently giving the players the option to not come out on the field for the Anthem.

So they aren't required to "stand for the anthem".

And Rendell-Baker v. Kohn held that the dismissials were allowed...

Respondent school did not act under color of state law when it discharged petitioner employees, and hence petitioners have not stated a claim for relief under 1983. Pp. 837-843.

https://caselaw.findlaw.com/us-supreme-court/457/830.html

And Blum v. Yaretsky held that the action didn't rise to the level of "state actions":

2. Respondents failed to establish "state action" in the nursing homes' decisions to discharge or transfer Medicaid patients to lower levels of care, and thus failed to prove that petitioners have violated rights secured by the Fourteenth Amendment. Pp. 457 U. S. 1002-1012.

https://supreme.justia.com/cases/federal/us/457/991/

[EffieBlack]

7. If you are an attorney, you know your argument is irrelevant to my point.

Last edited Wed May 23, 2018, 05:48 PM - Edit history (1)

Giving an option to not come out of the locker room is not an "out." It only means that the players either must express a certain opinion about a topic or remain silent. Saying that someone can refrain from participating does not save anyone from a First Amendment challenge.

Moreover, the law, as set out by the Court does not require the same outcome in every case - it al depends upon the individual facts of each case. So the fact that the Blum Court ruled that the parties in that case did not engage in state action has no bearing on whether parties in a different situation with different facts engaged in state action.

The law, as explained by the Supreme Court, holds that where the government coerces or influences behavior by a private entity, that behavior can constitute state action. The Court found that the behavior in Blum did not meet that standard. However, I believe that the facts of this matter - an organization passing a rule to prevent people from engaging in a particular kind of expression - expression they've been doing for several years - only after the president of the United States publicly and intensely berated them to do just that very likely DOES meet that standard. It is, in my view, a colorable claim.

[RandomAccess]

3. Effie --

You're an attorney, with some credentials beyond just that, why don't you write this up and submit it somewhere??

I"m NOT an attorney (tho I love the law and most attorneys), and I agree with you and believe this argument deserves a wider audience.

[Initech]

4. If it weren't for Fox News, people would not be giving a shit about this.

Further proof that everything Fox touches turns to shit. Trump included.

[onenote]

5. While the Court has held that there can be circumstances in which private action is treated as state

action, it almost never finds those circumstances have been met. In both of the cases cited in the OP, the Court found there was no state action.

In the 1961 case of Burton v. Wilmington Parking Garage -- the leading Supreme Court case in which private action was found to be state action, the Court treated the actions of a privately run coffee shop as state action specifically because the coffee shop "was physically and financially an integral part of a public building, built and maintained with public funds, devoted to a public parking service, and owned and operated by an agency of the State for public purposes, the State was a joint participant in the operation of the [shop].

Much different situation than the one presented by the NFL's rules about standing for the anthem. I wouldn't expect a suit against the NFL on First Amendment grounds to be successful.

[EffieBlack]

8. The Court holding there was no state action in one case does not mean that state action was not

present in another case with a different set of facts.

One of the first thing we learned in law school is to not focus on the outcome but to focus on the law and the reasoning that resulted in it and to understand how to distinguish and harmonize various fact patterns.

FYI, state action does not require physical commonality, state funds or joint operation. It is well-settled law that an action that is result of coercion or influence by the entity can be state action.

[Bluesaph]

6. Plus they offered an out

Players don’t have to go on the field during the anthem. Now wouldn’t it be great if players all remained indoors during the anthem? Wouldn’t it be even better if they got rid of all shows of faux patriotism at public games?

[EffieBlack]

9. An "out" isn't enough - in fact, it exacerbates the free speech violation

by forcing the players to either engage in the speech dictated by the NFL - whether they agree with it or not - or stay out of sight.

On edit: I totally agree with you about this false patriotism. It's a joke.

[Caliman73]

10. That is how it used to be before the military started pumping money into the NFL.

Teams typically did not take the field before the anthem. I think it changed in 2003.

[EffieBlack]

11. This is another reason the NFL will have difficulty arguing they are not engaging in state action

This commercial promotional relationship, along with anti-trust exemptions, extensive tax breaks and subsidies create a unique symbiotic relationship between the NFL and the government not replicated in any other public-private partnership in the country. The NFL's insistence on shutting down speech under presidential pressure - and only certain kinds of speech - makes this something far more than a private business decision, but elevates it to state action.

[Caliman73]

12. Agreed. Hopefully someone will take it up.

It may be an uphill climb, but it is worth the effort for the sake of speech.

[EffieBlack]

13. I heard a commentator say that First Amendment lawyers are already looking into this

I sure hope so!