State action and NFL protests

This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).

1) Close Nexus: Private actors act under color if they act under compulsion, coercion, or "overwhelming encouragement" of state officials. There is evidence that the league and the owners have acted out of fear of President Trump's tweets and general demagoguery and a desire to appease the President. Is that sufficient coercion or encouragement? Does it matter that the tweets are targeted specifically at the NFL and even particular players? I doubt this works, but the outline of the argument is there.

2) Symbiotic Relationship. A powerful (if questionably valid) basis is when there is an exchange of mutual benefits between the government and private actor, including where the government benefits from the unconstitutional conduct. The key here is the militarization of the NFL. The military and Department of Defense have paid the NFL millions of dollars to have the league promote patriotism and the military and player participation in the ritual is part of that.* The NFL gets a lot of money, the military and government is promoted and uses this as recruiting opportunities. To the extent those arrangements depend on a clean patriotic presentation and player protests interfere with that, perhaps limiting player protests could be seen as a way to maintain its arrangement with the military. We probably need to learn more about the deals between the NFL and DOD--what each party gets and what the league is expected to do as part of the deal. Again, this is tough, especially because some lower courts do not accept this as a valid test.

[*] On the radio program I did last month, former NFL player Joselio Hanson pointed out that the players remained in the locker room during the anthem prior to 2009. That change suggests a connection between player participation and the business deal between the league and the government.

The state action arguments work better as against the Indiana proposal, which will not become law in Indiana, nor will anything similar become law elsewhere.

3) The Indiana bill creates a close nexus, as the threat of monetary liability to the objecting fans compels or coerces the team to prohibit the players from protesting. Although the trigger for the monetary loss is a private complaint rather than a government-imposed find, the obligation of the teams to respond to the private complaint is government-imposed. In the same way that tort liability and a government fine are the same for state-action purposes, a compelled refund and government fine should be the same.

4) The Indiana bill resembles landlord ordinances. Landlords are threatened with fines or loss of license for having too many tenant 911 calls for disturbing the peace (including calls seeking help from domestic violence); the solution for landlords is to evict these tenants, prompting the tenants to refrain from calling 911, thereby increasing their vulnerability to violence. Although the eviction or threat of eviction comes from the private landlord, it is prompted by the threat of fines or loss of license if they do not evict. The same is going on here--the team is threatened with financial loss to the complaining fan, so it restricts the players' (constitutionally protected) conduct that might cause the team that loss. There is an extra player in the mix compared with the landlord situation; the latter has the government, the landlord, and the tenant, while this has the government, the team, the players, and the complaining fan. But again, there should be no difference between a fine and private liability when both are compelled by the government.