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Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

I don't know, but the answer is not obvious. I think courts will be deferential to how the government defines "the job." And the history of the anthem in sports, contested and inconsistent though it is, would be part of that consideration.

In an essay on Barnette for a Barnette 75th-anniversary symposium we did at FIU, I imagined a government office in which the director decided to begin each day with the pledge and whether an employee. Lower courts applied Barnette to teachers and loyalty oaths are invalid. But I am not sure what effect Garcetti has on this. Maybe none--maybe it is not as close a case as I think.

Posted by: Howard Wasserman | Feb 25, 2021 7:23:23 AM

Even if an employer can compel employee speech/conduct as part of a job--like requiring someone to wear a numbered jersey that allows the referee to identify them--Shirley that power doesn't include speech/conduct that have nothing to do with the performance of the job and doesn't reflect badly on the business or employer.

If saying the "pledge of allegiance" isn't part of education and might be the opposite of education, i.e. indoctrination (Barnette), Shirley the "national anthem" isn't part of athletics.

Athletes can perform exactly the same regardless of whether or not the anthem is played before the game, whether or not the athletes are even on the field while it's played, whether they stand or kneel during it, whether they hold their hand over their rib-cage, whether they sing-along, etc.

Posted by: Nietzsche's Dawn's early light | Feb 25, 2021 4:04:21 AM

Sorry, Eric: That was not directed at you. This was about a comment I deleted. Sorry for the confusion.

Posted by: Howard Wasserman | Feb 24, 2021 5:00:18 PM

1) I didn't mean anything I said as inflammatory, and I don't think it objectively was. But regardless, I am very sorry if I offended.
2) In hopes the second comment isn't directed at me, the Battle of Baltimore had its costs, like all battles. In that sense, no one ever wins a battle, and I don't disagree with that sentiment. That said, I'm pretty sure the battle also caused the British to withdraw and brought the war's end, so I'd call that a win, to the extent that one is possible.

Posted by: Eric | Feb 24, 2021 4:57:55 PM

And I am going to keep deleting everything you post here. We're done.

Posted by: Howard Wasserman | Feb 24, 2021 3:58:32 PM

Depends on what you mean by win. The fort was bombed to smithereens, which sounds bad. I guess our flag was still there, which is good.

Posted by: Howard Wasserman | Feb 24, 2021 12:00:00 PM

Didn't we win the Battle of Baltimore? Or were you referring to a different bad song written during a long-ago war?

Posted by: Eric | Feb 24, 2021 11:58:06 AM

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