I have previously set out my personal and legal views on protests by athletes during the national anthem. I don't think professional athletes have a constitutional right to protest during games, any more than any other employee. We now have the downside of that question, however, after Rep. Matt Gaetz (R-Fla.) Announced that he wants to introduce laws that would force US soccer players to stand up for the national anthem. The announcement came after the US football board decided to lift the rule that players must stand during the national anthem. Such a law would be unconstitutional.
Under Directive 604-1, which is no longer in effect, US football required the following:
All persons representing a federation national team must stand respectfully while playing national anthems at any event in which the federation is represented.
In a statement accompanying the repeal of the rule, the U.S. football board said
"US. Football affirms Black Lives Matter and we support the fight against racial injustice. … The policy was introduced after Megan Rapinoe knelt in solidarity with the peaceful protest inspired by Colin Kaepernick, who protested the brutality of the police and the systematic repression of blacks and people of color in America. It has become clear that this policy was wrong and undermined the important message of Black Lives Matter. "
In his program Hot Takes with Matt Gaetz Podcast on Friday, Rep. Gaetz stated: "The news triggered me today." He went on to say that he would legislate to stand up for the anthem.
"I don't like soccer enough for the US to have a soccer team if that soccer team disregards our anthem and flag." It is not necessarily something essential that we must have when we are attached to the US football team, is this sense of such extreme vigilance that we cannot be proud of the United States when we wear the United States uniform. .. I certainly think that we have the right to force our national team to stand for the national anthem, ”he continued. "While our anthem is playing while you serve on the team, I believe there is an obligation to respect our country."
His comments are based on the assumption that U.S. football is a public entity or corporation. Comparing the controversy with that of NFL politics, Gaetz said: “At least these are private individuals who work for a private company. (They) absolutely have the First Amendment right to do whatever they want as long as it doesn't harm anyone else. "
The problem is that the United States Football Association (USSF) is a private organization funded by private, not public, support. It is a 501 (c) (3) non-profit organization.
Ironically, to oppose such a law, Democratic members may have to take one of the legal positions they despise: freedom of speech for businesses. It's the same contradicting position Democratic members take to help Twitter and other companies use private censorship.
U.S. football would argue that it is in the same position as the children in the 1943 West Virginia State Board of Education v Barnette case, where the Supreme Court ruled that the state cannot be forced to stand up for that Using promises of loyalty. The Tribunal did indeed mention kneeling, albeit as an act of loyalty:
“There is no doubt that the flag salute in connection with the commitments is a form of expression. Symbolism is a primitive but effective way of communicating ideas. Using an emblem or flag as a symbol for a system, idea, institution, or personality is a mind-to-mind shortcut. Causes and nations, political parties, lodges and church groups try to associate the loyalty of their followers with a flag or a banner, a color or a design. … State symbols often convey political ideas, just as religious symbols convey theological ones. Appropriate gestures of acceptance or respect are associated with many of these symbols: a greeting, a bowed or bared head, a bent knee. A person gets from a symbol the meaning he gives it, and what is the comfort and inspiration of one man is another's jest and contempt. "
The court ruled:
“To believe that patriotism will not flourish when patriotic ceremonies are voluntary and spontaneous rather than a compulsory routine is an unflattering assessment of the attraction of our institutions to the free spirit. We can have intellectual individualism and the rich cultural diversity that we owe to extraordinary minds only at the price of occasional eccentricity and abnormal attitudes. If they are as harmless to others or the state as those with whom we are dealing here, the price is not too high. However, the freedom to differ is not limited to things that don't matter much. That would only be a shadow of freedom. The test of its substance is the right to distinguish oneself in relation to things that touch the heart of the existing order.
If there is a fixed star in our constitutional constellation, no official, whether high or petty, can dictate what should be orthodox in politics, nationalism, religion or other questions of opinion, or force citizens to confess their words or act faith in them . If there are circumstances that permit an exception, we cannot think of them now. "
If U.S. football is a private corporation, the legislation is unconstitutional and it certainly seems private.
However, this does not completely exclude the ability of the Congress to act. US football can receive federal funding, particularly in relation to hosting or participating in the World Cup. Congress could try to make such funding conditional on the organizations or any organization receiving federal funding honoring the national anthem through an anti-protest rule. This would raise a novel issue in a 2006 case and force consideration of an issue that was expressly left unresolved by the Court.
In Rumsfeld v Forum for Academic and Institutional Rights, Inc., 547 US 47 (2006), the Supreme Court unanimously ruled that under the Solomon Amendment, the federal government could constitutionally withhold funding from universities if it forbade military recruits from interviewing students . The Solomon Amendment denied federal funding to a college that "has a policy or practice … that either prohibits or effectively prevents the military" from "gaining access to campus or students … for campus purposes for military purposes" recruiting in a manner that that is at least equivalent in quality and scope to access to campus and students that is made available to any other employer “10 U.S. C.A. § 983 (b) (Supp. 2005).
Chief Justice John Roberts noted that such laws could violate the doctrine of unconstitutional conditions "unless Congress could directly require universities to give military recruits equal access to their students". Then he added:
“In this case, we do not need to determine when any condition for university funding goes beyond the“ reasonable ”choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357, USA 513, 526 (1958). Since the first amendment would not prevent Congress from directly imposing the entry requirement of the Solomon amendment, the law does not provide an unconstitutional condition for receiving federal funding.
The Solomon amendment does not restrict what lawyers can say, nor does it require them to say anything. Under the law, law schools remain free to express their views on the military's employment policy mandated by Congress while retaining eligibility for federal funding. See Tr. von Oral Arg. 25 (Attorney General admits that lawyers can “post signs on the bulletin board next to the door, give speeches and organize student protests”). In general, the Solomon amendment governs behavior, not language. It affects what law schools must do – give equal access to military recruits – not what they can or cannot say. "
This would be more speech than behavior to compel the organization and its athletes to watch the anthem. In such conflicts, courts should side with freedom of speech, one of the defining values that the flag and the anthem represent.
So Congress could try to thread that needle, but it would be a challenging case that threatens the interests of free speech. Of course, it is highly unlikely that such a calculation could happen to the house. In this case, a general requirement that US football require demonstrations of respect for the anthem or flag would presumably be unconstitutional.