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Tuesday, January 02, 2018

Indiana tries to stop NFL kneeling--and would fail

An Indiana legislator has introduced legislation that would require the Indianapolis Colts to grant fans a refund if players kneel during the national anthem. Fans would have to demand the refund during the first quarter. The article does not say whether the fan would be permitted to stay at the game upon receipt of the refund.* The sponsor insists the law is constitutionally valid, because it does not stop anyone from kneeling. But it seems to me the law suffers from three obvious problems. 

[*] Otherwise, think of the perverse incentives. I am not offended by players kneeling. But I might claim to be if I could get my $ 200 back, still watch the game, and screw one of the worst organizations in the NFL

As the ACLU said in the article, the law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person. For example, courts have declared invalid ordinances that fine landlords for 911 calls to their properties; the laws have been found to violate the rights of (usually female) tenants who are deterred from seeking police protection from domestic violence out of fear that a 911 call leads to a fine on the landlord which leads to the landlord evicting the tenant to avoid future fines. (And these are the second generation of such ordinances--the first generation required licensed landlords to evict or prohibited them from renting to individuals who had made multiple 911 calls). The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

A different version of that scenario might set the Colts up to be sued for a First Amendment violation by players prohibited from kneeling, by causing the Colts to act under color of law. A private entity acts under color when it engages in some conduct under the "overwhelming coercion" of the government. Here, the Colts would bar players from kneeling on pain of having to offer refunds to fans that ask, which the team would be required to do by state law. Although it is less direct than a law requiring the team to stop the players from kneeling, the loss of money could constitute the necessary coercion.

This is probably moot because the law will not be passed and/or the NFL is going to force the NFLPA to accept a rule requiring players to stand (as the NBA now has). But it gives me a chance to link to this article describing the letters written by citizens to USOC and IOC head Avery Brundage* about Tommie Smith and John Carlos following their protest at the 1968 Olympics, which sound identical to the complaints being made about Colin Kaepernick and his NFL brethren.

[*] One of history's truly despicable sporteuacrats.

Posted by Howard Wasserman on January 2, 2018 at 03:36 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink


A state's choice to prohibit or not prohibit some speech does not become government speech. But a private entity is different when aggregating or allowing speech by other speakers, because a private entity has First Amendment rights. Parade organizers have a First Amendment right to decide what speakers to include in the parade and a movie theatre has a First Amendment right to decide what movies to show and a newspaper has a First Amendment right to decide what letters to the editor to publish. It does not matter whether including is "endorsement" in any sense; the point is simply control and choices over what speech to allow. Government cannot interfere with that.

I would have a similar reaction to a law attempting to compel teams (on pain of monetary loss) to regulate fan speech (and I have argued extensively that the stands are pretty broad public forums).

Posted by: Howard Wasserman | Jan 3, 2018 7:07:07 PM

I don't think I disagree with this post or even the doctrine that I think it (probably) accurately describes. But I guess a lot depends, as far as the Colts' First Amendment rights go, on whether you really think the Colts organization is speaking by not punishing its players for speaking. Is the team endorsing the protests by not punishing them? Even expressing any attitude about the protests at all? Of course the protests are speech, but I don't know that declining to penalize them is speech about that speech, any more than, say, declining to penalize an alleged act of domestic violence expresses some protected speech about whether the incident occurred, how blameworthy it is, etc. Would you say that a state's choice to prohibit, or not prohibit, some form of private speech is in turn government speech? Of course you wouldn't, even if you bracketed all the doctrinal ramifications of calling something government speech. (Of course, reasonable observers might see the two cases differently.)

The 911/color of law stuff is interesting, and I think a stronger ground or grounds on which to challenge this bill. I wonder how you might feel if a conservative state had a similar law that required professional sports teams to refund children's tickets if fans used especially obscene language in their presence, thereby encouraging teams to regulate fans' compartment through the threat of ejection. Is that also unconstitutional? I wonder if that could be justified on some sort of limited forum ground. What about refunds for sincerely offended moviegoers who attend movies that contain more gratuitous sex than they had expected the movie to contain (assume the law isn't drawn as a regulation of false or misleading advertising)? I guess I tend to think that that's not alright unless it's a remedy for misleading advertising, though I'm a bit more okay with it as the purpose may not be censoring the movies so much as compensating people who are deeply dissatisfied with the movie they paid to see.

Posted by: Asher Steinberg | Jan 3, 2018 12:25:53 PM

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