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Monday, August 12, 2019

Protest (and be punished) like it's 1968

At the Pan Am Games, fencer Race Imboden knelt on the gold-medal podium during the anthem and hammer-thrower Gwen Berry raised her first. Both face sanction, because not much has changed since 1968. The U.S. Olympic and Paralympic Committee offered this internal contradiction: "Every athlete competing at the 2019 Pan-American Games commits to terms of eligibility, including to refrain from demonstrations that are political in nature,” although "[w]e respect his rights to express his viewpoints.” No, you clearly do not respect his rights to express his viewpoints when those viewpoints are political in nature. Because standing at attention during a national anthem while playing "for your country" is never political.

The USOPC (did not realize the "P" had been added) is not bound by the First Amendment and can restrict athlete speech however it wishes. But do not pretend that you also respect the athletes' rights to express their views.

Posted by Howard Wasserman on August 12, 2019 at 09:39 AM in First Amendment, Howard Wasserman, Sports | Permalink


"Applying the First Amendment to organisations would restrict their ability to send a message, in serious tension with the First Amendment itself."

But discriminating doesn't send a message? So restricting them from discriminating doesn't prevent them from being able to send a message?

Posted by: Dayton ElPaso | Aug 13, 2019 5:37:40 PM

Applying the First Amendment to organisations would restrict their ability to send a message, in serious tension with the First Amendment itself.

Posted by: Jr | Aug 13, 2019 7:05:58 AM

The point is that if the government CAN apply the 14th amendment's anti-discrimination clause to private actors (Jones), then they CAN apply the entire bill of rights to private actors also--which means it's only a matter of time until they do.

Posted by: Outatime Mind | Aug 12, 2019 10:11:51 PM

Statutes--the 1866 Act, ADA, Title VII, etc.--apply to private actors. But Congress has not enacted a statute prohibiting private actors from restricting private speech. The Constitution, specifically the 1st and 14th Amendments, applies only to government actors. Jones has nothing to do with anything.

Not sure what Ali has to do with this, either. It's not like he would have not had to give up his career had he not stood up for his principles--had he not stood up for his principles, he would have been sent to shoot people in the jungle. And had the government not violated the Constitution, Ali would not have lost any part of his career.

Yes, those are the rules--as indicated by my saying the USOPC "can restrict athlete speech however it wishes." That doesn't mean the rules are right and that the USOPC should be able to deal with athlete speech.

Posted by: Howard Wasserman | Aug 12, 2019 9:06:18 PM

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

Laws apply to non-governmental actors.

The Supreme Court held that the Civil Rights Act of 1866 prohibited both private and state-backed discrimination and that the 13th Amendment authorized Congress to prohibit private acts of discrimination as among "the badges and incidents of slavery."

Not being able to protest is a badge or incident of slavery. The first thing every slave is punished for is protesting.

Posted by: Sam Iam | Aug 12, 2019 8:49:02 PM

If athletes had unlimited free speech rights they could wear Bernie Sanders for President or Donald Trump for President stickers on their uniforms. Participation is a privilege not a right and the organizers have rules. The athletes have to wear certain uniforms despite other equipment contracts they have. They also can say whatever they want during interviews or on social media. But during ceremonies they are not allowed to demonstrate. They know the rules going in. If they don't like it they don't have to participate. Mohammed Ali gave up years of his career for his principles. I wonder if these athletes are willing to do the same. And Forrest, don't know what the 13th Amendment has to do with this, but the First Amendment doesn't apply to non-government actors. And these organizations are not part of the government.

Posted by: sam tenenbaum | Aug 12, 2019 7:04:14 PM

If they're a 501c3 aren't they bound by the 13th and 14th amendment, the ADA, etc. If they have to respect all the rights against discrimination, due process, etc., why don't they have to respect the first amendment as well?

Posted by: Forrest Grumpp | Aug 12, 2019 4:50:18 PM

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