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Thursday, August 09, 2018

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.

Posted by Howard Wasserman on August 9, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink


He who prefers , may read an article in this regard ( of NYCLU ) titled as :


here :



Posted by: El roam | Aug 10, 2018 7:09:58 AM

Hereby a case , clarifying or illustrating , when a private actor , is to be held accountable or considered as constructive state actor for the purpose of violation of first amendment right. In accordance , one may draw conclusions concerning the issue of the NFL , here :



Posted by: El roam | Aug 10, 2018 6:42:18 AM

Whatever Wasserman ....

Posted by: El roam | Aug 10, 2018 4:48:45 AM

Based on the recognized test of close nexus (what the random district court decision that you randomly quote out of context calls governmental nexus). A private entity acts under color if there is a nexus between government and the challenged conduct, where government coerces, compels, or significantly encourages the private misconduct.

Posted by: Howard Wasserman | Aug 9, 2018 11:01:59 PM

Based on what Wasserman ?? Suppose a person , private entity , is posturing or posing falsely as a police officer , and arrest someone . The state would be responsible for it ?? Of course not !! Unless directly contributed to it . Why , because he doesn't have any public title or authorized by law to do what it did . So , there is no color or under color . Here for example the qualified immunity provision (42 U.S.C. § 1983 ) I quote :

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia......

That is to say , that he must bear any official power or function. It can be a private entity , as long as he functions minimally as a state agent . Like : a physician who contracts with the state to provide medical care to inmates , acts indeed , under the color of state law ( WEST v. ATKINS ) . But We couldn't understand from the post , what the NFL , has to do with it ( maybe it has ,I doubt it very much , but we couldn't understand simply ) . Here , West V. Atkins :



Posted by: El roam | Aug 9, 2018 6:22:08 PM

No, one doesn’t. Private persons or entities can act under color pursuant to any of five or six different tests (depending on how we count). An entity need satisfy only one to be subject to constitutional liability. If close nexus could be satisfied, there is no need to consider public function.

Posted by: Howard Wasserman | Aug 9, 2018 3:47:08 PM

Me either Wasserman , I was referring rather to the " under color " issue , but for the latter , one needs at first place to deal with public function . All , not withstanding the tests of the supreme court mentioned there indeed .


Posted by: El roam | Aug 9, 2018 3:39:28 PM

Well, then, it is a good thing I did not argue or even suggest that the public function test applied.

Posted by: Howard Wasserman | Aug 9, 2018 3:31:44 PM

Just citing the tests of the supreme court from the ruling mentioned above , here :

However, in some circumstances, a private entity can be a state actor for constitutional purposes. Specifically,
“‘[t]he Supreme Court has articulated four tests for determining whether a private party’s actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state
compulsion test; and (4) the governmental nexus test.’” Tsao v. Desert Palace, Inc., 698 F.3d1128, 1140 (9th Cir. 2012) (alteration adopted) (quoting Franklin v. Fox, 312 F.3d 423, 444–45(9th Cir. 2002)).Plaintiff contends that Defendants are state actors under the “public function” test. See Compl. ¶ 87 (stating that “Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function”). Under the public function test, “[p]rivate activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State.’” Brunette v. Humane Soc’y of Ventura Cty.,294 F.3d 1205, 1214 (9th Cir. 2002) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). The United States Supreme Court has stated that “[w]hile many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State.’” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)). Examples of functions that have been deemed to be “traditionally the exclusive prerogative of the State” include “hold[ing] [public] elections,” “govern[ing] a town,” and “serv[ing] as an international peacekeeping force.” Brunette, 294 F.3d at 1214 (citing Terry v. Adams, 345 U.S. 461, 484 (1953), Marsh v. Alabama, 326 U.S. 501, 507–09 (1946), and Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1226–27 (5th Cir. 1982)).

So , one can't either claim , that managing such league , is a prerogative of the state , or traditionally a state function . So , much more clarifications are needed here it seems .

Directly to the ruling :



Posted by: El roam | Aug 9, 2018 3:21:17 PM

Interesting , but it doesn't seem like a case of " close Nexus " as defined in that post . For , an act under color , means that the entity has functional public power or official power by law, and under such title , the concrete act itself , is illegal , but seems to be an act correct or falling within the scope of duty of that official power of the public servant .

Suppose a police officer . As such . In night shift . Just patrolling the street . He does come across with his neighbor detested so much by him . He decides to " balance the books " and take a revenge . Detaining him , conducting search on him , all under the false pretext that he has just seen him , stealing something ( so humiliating him publicly ) . The police officer , is indeed one , having general and conceptual power to detain someone , and conducting a search , but , only while having reasonable cause or suspicion , not for illicit personal purposes .So the duty is general and right as such by law prescribed , but the concrete act , is under color , yet illegal .

So , can it be said that such owners of that league , have any official public title or power delegated by law ?? To my best knowledge , not at all !! To my best knowledge they fulfill private function , not public ( although they may have some public duties prescribed by law ) . Anyway , needs further clarifications or specifications it seems .

By the way , recently The US District Court for the Northern District of California dismissed a lawsuit brought by Prager University against Google alleging that the technology giant censored Prager’s politically conservative YouTube videos , for the same claims of private entity abusing first amendment right .Here one may read in " Jurist " and the links therein to the ruling :


And Wasserman , you may find great interest in that article and the links therein ( ruling concerning first amendment ) here :



Posted by: El roam | Aug 9, 2018 2:56:02 PM

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