Monthly Archives: September 2017

Trump, the NFL, and the First Amendment

This question came up this week in my Monday night class, when we were discussing First Amendment cases, and I’m planning to revisit it at the start of next week’s session.  Meanwhile, I’d like to preview a few points right now, as well as post a link to a fresh new article in Politico Magazine on this very same subject.

As we all know, Colin Kaepernick and some other NFL players–now more than ever, having been egged on by El Trumpo–have been refusing to stand at attention for the national anthem, instead kneeling down (“taking a knee,” as it has come to be called).  Trump has ranted about it on Twitter, suggesting that Americans should boycott watching the NFL games and that the NFL should make a rule demanding that the players all stand the the anthem.  And the question that came up is, how does the First Amendment relate to this?

When we talk about the First Amendment, especially when we’re in Chapter 4 of most American Government textbooks, the one titled “Civil Liberties,” we’re talking not about the general philosophy of free speech, but more specifically about court cases, almost entirely federal court cases, especially Supreme Court cases.  And, what does it take to make a federal court cases involving freedom of speech under the First Amendment?  In a nutshell, there needs to be some person or group of people either getting punished for speech or in some way blocked or hindered from expressing themselves by the government.  Now, all of the aforementioned terms are broad.  Speech is broad: it can include a wide range of forms of expression, including physical actions that have the intent and the effect of sending a message.  Punishment and obstruction of speech also come in a wide variety of forms.  And what is the government?  The government is essentially any agency that is officially run by either the U.S. government or any city or state.  City Tech is a state- and city-run college, which means that First Amendment court cases could arise from incidents at City Tech that would not arise at our neighbors St. Francis College or LIU.

So far, what has happened involving Trump and the NFL is missing an important ingredient for a First Amendment court case: a government action either hindering or punishing the taking of a knee at the football games.  What we have from Trump is not any kind of official punitive government action, but merely the expression of an opinion.  Now, people are certainly free to say that it’s inappropriate for a president to take such a stand, especially to call for a boycott, but he’s still just expressing an opinion, and that is what stops it from being likely to come to any federal court.

Moreover, if the NFL were to take Trump’s advice and start using coercive tactics against the players, I don’t see a First Amendment case there either, because the NFL is not the government.  This is not to be confused with saying there wouldn’t be other issues.  Hypothetically, if the NFL started taking punitive action against players who took the knee, and if one of those players showed up at a lawyer’s office for help fighting it, the lawyer would ask to see the player’s contract and any and all prior written regulations of the NFL, to see if they were violating any prior commitments that could involve freedom of speech.  I’m not saying there wouldn’t be grounds for a case, only that it wouldn’t be a First Amendment case.

But, let’s not leave the matter there.  Let’s consider another hypothetical scenario.  Let’s suppose that either Congress or the legislature of some state were to pass a law requiring all professional athletes to stand at attention when the national anthem was being played.  Now would there be the ingredients for a nice juicy federal court case involving the First Amendment?  Absolutely. And what’s more, I can think of two precedents that the kneeling football players would have on their side:

1.  The 1943 Jehovah’s Witness flag salute case was not only about free exercise of religion (freedom from being compelled to perform an act that was contrary to one’s religious faith) but also about “forced speech”:  the principle that freedom of speech includes freedom from being forced to express a point of view that one does not wish to express.

2.  The 1993 case of Johnson v. Texas, which involved burning the flag as a form of political protest, involved symbolic speech and struck down a Texas law that tried to criminalize flag burning.

I don’t foresee any law being passed, but if it were, those are two precedents that it would be up against.  But that isn’t what’s happening.  What is happening is that the NFL players are taking the knee, Trump is expressing his opinion, and millions of Americans are expressing their opinions on both sides.  As long as all anyone is doing is expressing opinions, there’s no free speech court case, just free speech being exercised.

But, enough from me.  I promised you a link to a Politico Magazine article.

Trump and the NFL

Let me open with a full-faith disclosure:  I pay no attention to football and can scarcely name you a single player.  In fact, I haven’t even paid enough attention to know which team Colin Kaepernick plays for.  But our president, for reasons totally consistent with his behavior pattern to date, has made the refusal of Kaepernick and some others to stand for the national anthem a major political issue when it might otherwise have remained low-key and eventually blown over.

As students have heard me say right along, I have always regarded both the Trump campaign and the Trump presidency as a performance: a performance for a very specific audience, the audience was talking about when he said he could shoot somebody in broad daylight on Fifth Avenue and they’d still love him.  And what drives that base is an intense, strident form of nationalism, the kind of nationalism that feels victimized and under siege.  This is the same base he was playing to when he said that, if he became president, people would once again say “Merry Christmas” instead of “Happy Holidays.”

To call his Fifth Avenue base racist would be too simplistic.  For one thing, he has some African American supporters.  (He has supporters in every ethnic group, though the great majority of his supporters are non-Hispanic whites.)  What is fair to say is that his supporters are racial conservatives, the people who consider racism to be a problem of the past, who feel victimized by any kind of “identity politics,” and who demand that all citizens venerate the flag and the national anthem.  The NFL protests are exactly the kind of thing his base will feel outraged about, and playing to that outrage is exactly what can be expected from Trump, given that this base is the only set of Americans he’s interested in impressing to begin with.  They are whom he means by “the American people.”

Here are two NPR reports from Monday evening, September 25, 2017:  right here and right here.  And, a follow-up Tuesday morning, September 26.  Trump has certainly managed to galvanize the NFL coaches and players against him.

Article in  Politico about Trump playing to his fan base with this issue, September 25, 2017

Article in Politico about Trump’s Tuesday morning tweets, September 26, 2017

Joe Biden, the Anti-Populist

I haven’t heard anybody mention this in a long time, but Joe Biden was gearing up to run for president in the 1988 Democratic primaries–that’s right, three whole decades ago–when word got out that he had written a paper in law school with some plagiarism in it, and had also included a passage in one of his own speeches copied from a speech by British politician Dennis Healy.  Here’s a New York Times article from 1987 about that.

He was in his third term as a U.S. Senator at the time,  He remained in that job until he took office as Obama’s vice-president in 2009.  Many people were hoping he would run for president in the 2016 election, and he thought about it but decided not to.  At the time, the death of his son Beau Biden was still fairly recent, a tragic loss that earned him much public sympathy.  I also had the impression that he really didn’t want to run against Hillary Clinton; in the early stages of the primary, I sensed that he was watching to see if she was going to be pressured to pull out over the email brouhaha, but of course that didn’t happen.

Now, he appears to be exploring the possibility of running in 2020.  If he does, he is poised to represent the traditional mainstream of the Democratic Party.  What does that mean?  Pro-social programs, pro-regulation of business, pro-labor unions, and of course extremely anti-Trump, but not on the warpath against Wall Street and big business; in other words, not populistic.  Not like Bernie Sanders.

Now that he’s in his 70s, people are apparently less concerned about what he did when he was in his 20s or even his 40s.  I haven’t heard any talk of his character being questioned.  The big question is, will his particular brand of liberalism sell in 2020?  Will his own personality sell in 2020?

Feature article in Politico Magazine, September 23, 2017

Blog Post by Biden

Op-Ed piece in the New York Times by Biden, September 14, 2017

On Repealing Obamacare

Ordinarily, a bill before the Senate needs 60 votes to pass, because that’s how many votes are required to bring a filibuster to cloture.  But, when a bill is made part of the budget reconciliation process, it can pass with a simple majority.  Now, when a bill is strictly partisan, one might ordinarily expect the party that has 52 seats in the Senate to be able to muster up a simple majority.  That does not, however, appear to be happening with the Graham-Cassidy bill, the latest attempt to repeal the Affordable Care and Patient Protection Act, more popularly known as Obamacare.  The Graham-Cassidy bill would eliminate subsidies the personal mandate and turn most of the operation over to the states with block grants.

As before, some of the Republicans in the Senate think the bill is too conservative (in terms of taking health insurance away from too many people, while others think it’s too liberal.  The great majority of Republicans in Congress want it to pass, but two Republicans Senators have said they definitely won’t vote for it, and four more have said they’re reluctant.  Since no Democrats will support it, the Republicans can’t afford to have any more than two of them vote against it.  If only two vote against it, the vote will be a tie and Pence will break the tie, but that doesn’t look very promising at the moment.

Article in Politico about the situation in the Senate, September 25, 2017.

Article in Politico explaining what’s in the Graham-Cassidy Bill, September 19, 2017

NPR report, September 25, 2017

Here’s what Judge Roy Moore is doing now

The other night in class, I referred to Judge Roy Moore of Alabama, who got in trouble over a decade ago for insisting on displaying the Ten Commandments in his courtroom, and who a year ago was back in the news in the same state for encouraging state courts to defy the Supreme Court’s 2015 gay marriage ruling.  I was a little vague on what our friend was doing now, but expressed confidence that we hadn’t heard the last of him in the news.

Okay, well…here’s what he’s doing now:  He’s running for United States Senate in a special primary election in Alabama.  He has a chance of winning that primary, and then of winning the general election, which would be really bad news for the Republican leadership in the Senate.

Politico story, September 18, 2017

Here’s the thing: The Republican Party was already in danger of a rupture before Donald Trump took center stage–because, for as rigidly conservative as the Republican leadership in the House and Senate may seem (House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell), for the past few years, they have been under attack by those Republicans who don’t think they show nearly enough conservative doctrinal purity, and who would be willing to shut down the government to get their doctrinally pure agenda passed.  (That includes excluding Planned Parenthood from any federal reimbursements, repealing Obamacare, and making deep cuts in the social welfare budget.)

I don’t want to give the impression that the doctrinally pure Republicans are all alike when it comes to what they demand doctrinal purity about.  For some, it’s fiscal conservatism.  For others, it’s the evangelical theocratic mentality, wanting America to be a right-wing Christian nation where abortion is illegal and gay marriage has no legal recognition.

Roy Moore doesn’t have the same political orientation as Trump, but he does seem to have the same level of manners in campaigning, as he has not held back from making personal name-calling attacks on McConnell.  McConnell has his problems as leader already; life won’t get any easier for him if Roy Moore gets into the Senate.