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

[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.