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Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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