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

[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.

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