Trump’s Double Standard on NFL Anthem Protests As Free Speech

This article first appeared on Dorf on Law.

In the Masterpiece Cakeshop case currently pending before the SCOTUS, the United States has filed an amicus brief in support of the cakeshop, arguing that "an individual’s right to speak or remain silent according to the dictates of his or her conscience" is so powerful that it should prevail over the government's interest in enforcing its public accommodations law.

At a recent rally in Huntsville, Alabama, President Trump did his best to undermine the federal government's opposition to compelled speech by expressing the view that a professional athlete who quietly protests police brutality by taking a knee during the playing of the national anthem rather than participating in the patriotic display is a "son of a bitch" who should be fired for his temerity. He doubled down on this view via Twitter.

Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views about professional athletes?

By that question, I do not mean to ask whether Trump had in mind some principle that distinguishes his administration's support for the free speech right of a baker to refuse to bake a cake for a same-sex wedding from an athlete's ostensible non-right against compelled participation in the national anthem. Presumably Trump had nothing in mind other than his usual toxic cocktail of rage and ego.

What I mean is whether the positions can be reconciled. And as long as I'm asking that question, I'll ask the converse question for liberals like myself, who think that the athletes should not be disciplined for taking a knee but that the baker can be required to comply with the public accommodations law.

GettyImages-853285656 (1) Ryan Anderson #52 of the Washington Redskins locks arms with teammates as they kneel and stand in unison during the national anthem before playing against the Oakland Raiders at FedExField on September 24, 2017 in Landover, Maryland. Patrick Smith/Getty

1. State Action

As a formal matter, Trump could note that Masterpiece Cakeshop arises under the Constitution because the government is obligating the cakeshop to provide service to the customers seeking a cake for a same-sex wedding, while he advocated private actors--NFL owners and fans--retaliating against knee-takers.

There is state action in the former case, which makes the First Amendment (as incorporated against the State of Colorado via the Fourteenth Amendment) applicable.

There is no state action when a team owner fires a player. (That's even true if the team is the Green Bay Packers, sometimes described as municipally owned but actually a publicly owned non-profit corporation.)

So there's no contradiction, right?

Well, as a formal legal matter sure, but the thrust of the federal government's brief is that compelled speech is actually a very substantial infringement on liberty. A baker, the brief says, should not have to choose between plying his chosen trade and violating his conscience by expressing views contrary to those he holds.

That exact same interest is at stake for a professional athlete. Put differently, from the perspective of the individual, the stakes are the same whether the compulsion to speak comes from the government or an employer.

To be clear, I am not saying that the First Amendment applies to private actors or even that it should. I am saying that, at the level of values, the position expressed by Trump in his Huntsville riff contradicts the position expressed by the Trump administration in its Masterpiece Cakeshop brief.

2. Owners Versus Employees

One notable feature of recent cases in which people seek exemptions from general rules on grounds of conscience--whether the cases involve speech or religion--is that the claimants own businesses. Some of these businesses are quite large, as in the Hobby Lobby case. Some are very small, as in Masterpiece Cakeshop . But crucially, protection is sought (and sometimes won) by owners rather than workers.

An employee of Hobby Lobby who does not share the owners' religious beliefs about certain contraceptives has no claim. That works in all ideological directions. A pharmacist who works for a company owned by people who do not object to providing the morning-after pill has no right to refuse to provide such pills on grounds of conscience.

The different treatment between owners and employees is a function of the state action doctrine. An owner objecting to complying with federal, state, or local law complains about state action, triggering constitutional protection or its equivalent under statutes like the Religious Freedom Restoration Act.

By contrast, an employee is complaining about policies set by his or her employer, which is not state action.

Thus, Trump could say that professional athletes, unlike self-employed bakers, are mere employees, and therefore unentitled to protection for conscience or speech.

He could say that, but the fact that the law protects owners but not employees seems more like a bug than a laudable feature of our legal regime. Moreover, as with respect to point 1 above, the reliance on the state action doctrine does not address the contradiction at the level of values.

3. Speech Versus Conduct

For the baker to prevail in Masterpiece Cakeshop , there must be available some limiting principle that distinguishes supposedly expressive baking from the provision of a host of other goods and services. In a recent essay, I explained why I am dubious about any such principle in light of the breadth of modern conceptions of art.

But even if one thinks a principled line can be drawn somewhere, refusal to participate in a patriotic ritual is much more clearly on the protected side than refusal to bake a cake.

Indeed, the landmark Supreme Court case establishing a right against compelled speech-- West Virginia State Bd. of Educ. v. Barnette --involves a refusal to speak that looks very much like the expression of athletes that Trump wishes to see fired.

The plaintiffs in Barnette refused to participate in the Pledge of Allegiance. The athletes Trump attacked refuse to participate in the national anthem.

Accordingly, if one were to distinguish the cases on expressiveness grounds, the distinction would cut clearly in favor of the athletes and against the baker. The distinction could reconcile the positions of liberals like me on these issues, not the positions taken by Trump and his Justice Department.

4. Countervailing Interest

Another distinction also points powerfully in favor of the athletes. We might acknowledge that the baker who opposes same-sex marriage has his liberty infringed when required by a public accommodations law to provide a cake for a same-sex wedding but nonetheless conclude that the Constitution permits this amount of compulsion because of the very strong countervailing interest in equality.

Laws forbidding discrimination in public accommodations based on race, religion, sex, sexual orientation, and other characteristics serve important functions in our society, including not only ensuring access to goods and services but the avoidance of stigmatic injury.

By contrast, compelling participation in patriotic displays serves only authoritarian interests. Trump is an authoritarian who no doubt believes that compelled participation in patriotic rituals displays American strength.

Yet that is the kind of strength better associated with the sorts of strongman dictators Trump admires than with patriotism in a republic like our own. In response to Trump's vulgarity, I'll quote the eloquent rejoinder by Justice Robert Jackson in Barnette :

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support.

Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.

We can legitimately debate whether that principle ought to extend so far as to cover bakers in the face of the strong countervailing interest in equality. There should be no debate over whether it applies in what amounts to the same context that Jackson articulated it.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University . He blogs at DorfOnLaw.org .

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