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Wednesday, May 30, 2018

When does encouragement become overwhelming or coercive?

Depositions in Colin Kaepernick's collusion grievance reveal that President Trump spoke to at least one owner about halting the protests lest Trump make a political meal out of it. And fear of criticism by Trump, and the public being worked into a froth by that criticism, influenced other owners.

A private person or entity acts under color of law of law when there is a "close nexus" between the constitutionally violative private conduct and the government or government officials coercing, compelling, or overwhelmingly encouraging that conduct. So could we see constitutional challenges* either to the league's new protest policy or to the blackballing of protesting players?**

[*] Because the close nexus would be with a federal official, this would be a Bivens rather than § 1983 action against the NFL or individual owners. That presents two questions I leave aside for now: 1) Would the Court reject this as an improper "extension" of Bivens and 2) Whether and how the "under color" tests from § 1983 translate to Bivens, a point on which lower courts divide.

[**] This one faces the additional problem that the NLRA grievance process would qualify as an alternative statutory scheme.

The key is what coercion, compulsion, or overwhelming encouragement means. Trump wants the owners to stop the protests and he wants to make political hay out it. Do those efforts to influence the NFL and its owners qualify as overwhelming encouragement, by threatening to create a public backlash that would hurt the league and its business? Can we see Trump as coercing (through threat of harm to the league's business)  the owners to silence the players, something Trump himself cannot do? While Trump's speech is protected as government speech, can it form the link for NFL liability?

I doubt this would work. But it is worth considering.

Posted by Howard Wasserman on May 30, 2018 at 05:47 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


But this is how the under-color analysis works. When there is a sufficient government connection to private conduct, the private actor loses the right to conduct its business as it wishes, because it becomes subject to the same constitutional limitations on its conduct as a public actor. This is why courts are so circumspect in finding under color--they recognize the individual liberty that is lost by the private actor. And why I do not believe the players could make out a First Amendment claim against the league. But when the government connection is high enough, it overcomes those individual-liberty concerns.

Posted by: Howard Wasserman | Jun 2, 2018 12:06:23 PM

It would be remarkable if one day the NFL was completely within its rights to blackball annoying rabblerousers and then the next day, because Trump strongly urged them to do something, they lost their right to conduct their business the way they want to. If this were so, then suppose a President didn't want ABC to cancel a particular show because of an offensive tweet by the star. What he should do is call up the execs, urge them to cancel the show, and then voila, they would be barred by the Constitution from canceling the show.

Posted by: Biff | May 31, 2018 8:41:36 PM

Wasserman ( and others of course interested in free speech issues ) you may find interest in that article ( and links to ruling therein ) :


Posted by: El roam | May 31, 2018 6:38:06 AM

I couldn't find so far ,such offense as : " Breach of trust " In US codes , but I have encountered some others pretty interesting ( but of course , one needs to dig deeper , and check facts and etc…..too far and early right now) here two :

18 U.S. Code § 227 - Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch


And :

18 U.S. Code § 224 - Bribery in sporting contests



Posted by: El roam | May 30, 2018 8:13:05 PM

Interesting issue . But, we deal here with civil action ( 42 U.S. Code § 1983 - Civil action for deprivation of rights ) and one should suggest clearly , what is the nexus between the duty or power of Trump ( exercised as such ) in this case , and the violation or coercive conduct (" every person who, under color of any statute, ordinance, regulation, custom, or usage......" ) .

One may think of simple and common offense : " Breach of trust " I don't know if it does exist in the federal codes . In the penalty code of Canada it does , here I quote ( Article 122 ) :

Breach of trust by public officer

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person .

It is a very essential and important offense . I shall check it out later if indeed ….


Posted by: El roam | May 30, 2018 6:45:45 PM

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