Congress, Constitutional Law, Free Speech

No, Congress Cannot Force U.S. Soccer Players To Stand For The Anthem

440px-Matt_Gaetz,_official_portrait,_116th_CongressI have previously stated my personal and legal view of protests during the national anthem by athletes. I do not believe that professional athletes have a constitutional right to protest during games, any more than other employees.  However, we now have the flip side of that question after Rep. Matt Gaetz (R-Fla.) announced that he plans to introduce legislation that would force U.S. Soccer players to stand for the national anthem. The announcement came after the U.S. Soccer Board of Directors voted to repeal the rule requiring players to stand during the national anthem.  Such a law would be unconstitutional.

Under the now defunct Policy 604-1, U.S. Soccer required:

All persons representing a Federation national team shall stand respectfully during the playing of national anthems at any event in which the Federation is represented.

In a statement accompanied the rescission of the rule, the U.S. Soccer Board of Directors said

“U.S. Soccer affirms Black Lives Matter, and we support the fight against racial injustices. … The policy was put in place after Megan Rapinoe kneeled in solidarity with the peaceful protest inspired by Colin Kaepernick, who was protesting police brutality, and the systematic oppression of Black people and people of color in America. It has become clear that this policy was wrong and detracted from the important message of Black Lives Matter.”

On his show Hot Takes with Matt Gaetz podcast on Friday, Rep. Gaetz declared “Today the news has me triggered.”  He proceeded to say that he would introduce legislation to require standing for the anthem. 

“I don’t like soccer enough, for the U.S. to even have a soccer team, if that soccer team is going to disrespect our anthem and our flag. It is not like some essential thing that we have to have, if latched to the U.S. Soccer Team is this sense of such extreme wokeness that we cannot be proud of the United States while wearing the uniform of the United States…I certainly think that we have the right to compel that our national team stand for the national anthem,” he continued. “While our anthem is playing, while you serve on the team, I think there is an obligation to respect our country.”

His comments are premised on the assumption that U.S. Soccer is a public institution or corporation.  In comparing the controversy to that of the NFL policy, Gaetz stated “At least those are private people, working for a private company,. [They] absolutely have the First Amendment right, to do whatever the heck they want to do, so long as it doesn’t hurt anyone else.”

The problem is that the U.S. Soccer Federation (USSF) is a private organization that is funded by private not public support.  It is s a 501(c)(3) nonprofit organization.

Ironically, to oppose such a law, Democratic members may have to embrace one of the legal positions that they despise: free speech rights for corporations. It is the same conflicted position that Democratic members have supporting Twitter and other companies in the use of private censorship.

U.S. Soccer would argue that it is in the same position as the children in the 1943 case of West Virginia State Board of Education v. Barnette where the Supreme Court ruled that the state could not compel then to stand for the pledge of allegiance. The Court actually mentioned kneeling, albeit as an act of fealty:

“There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. … Symbols of State often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn. “

The Court held:

“To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

If U.S. Soccer is a private company, the legislation is unconstitutional and it certainly seems to be private.

That however does not entirely foreclose any ability of Congress to act.  U.S. Soccer may receive federal funds, particularly in relation to hosting or participating in the World Cup.  Congress could seek to condition such funds on the organizations, or any organization receiving federal funds, honor the national anthem through a rule against protesting.  That would raise a novel issue under a 2006 case and force consideration of a question expressly left unresolved by the Court.

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), the Supreme Court unanimously ruled that the federal government, under the Solomon Amendment, could constitutionally withhold funding from universities if they barred military recruiters from interviewing students.  The Solomon Amendment denied federal funding to an institution of higher education that “has a policy or practice … that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983(b) (Supp. 2005).

Chief Justice John Roberts noted that such laws could run afoul of the unconstitutional conditions doctrine “if Congress could not directly require universities to provide military recruiters equal access to their students.”  He then added:

 “This case does not require us to determine when a condition placed on university funding goes beyond the ‘reasonable’ choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”

This would be more speech than conduct in forcing the organization, as well as its athletes, to observe the anthem.  Courts should err on the side of free speech in such conflicts, one of the defining values that the flag and the anthem represent.

Thus, the Congress could try to thread this needle, but it would be a challenging case and one that threatened free speech interests.  Of course, it is highly unlikely that such a bill could pass the House.  However, if it did, a general requirement that U.S. Soccer must require demonstrations of respect for the anthem or flag would be presumptively unconstitutional.

65 thoughts on “No, Congress Cannot Force U.S. Soccer Players To Stand For The Anthem”

      1. Anonymous…..Any ongoing injustices faced by blacks are self-inflicted.
        It’s time to grow up and stop blaming whitey for your failures.
        Passed time.

        1. Your spelling error actually gives a whole new meaning to your screed. It’s actually funny now.

            2. Time passes and is passed. Once it has been passed, it is then considered past.

    2. He doesn’t have a right to strike poses on company time unless its in his contract, no matter what these Winter Soldiers fancy.

      1. says someone who has never served, but ty for your arm-chair commentary

  4. Turley knows that he’s missing the point: the Congress does not have the power to compel speech from a private company, but they ABSOLUTELY have the right to deny Federal funds to that private entity and no explanation for such action is required.

  5. The problem is that the U.S. Soccer Federation (USSF) is a private organization that is funded by private not public support. It is s a 501(c)(3) nonprofit organization.

    That may be true. As to the BigSports, its amazing the way team owners can get local government officials to dance a jig. The Funny Times once had an extended comic strip wherein St. Louis City officials built a stadium with a retractable dome to persuade a 27 year old Kinko’s employee not to move somewhere else. (“City Hall spokesman Vance Nielsen said, ‘It goes beyond dollars and cents. Look, this is not going to be the administration that lost Balter'”).

  6. I’d be pleased if BigSports died out, and you had the equivalent of minor league teams which had modest incomes and players with day jobs. Colleges might sponsor teams by allowing the use of their facilities, but not pretend the players were students at the institution (though some might be). The NBA, the NFL, and, to a lesser degree, major league baseball strike one as providing opportunities for a small number of people with immense appetites to sate them for a while. Until the money runs out or is lost in bad business deals.

  7. The left politicises every bloody thing. Football, soccer, even knitting. What needs to happen is for leftists to lose status in their peer group and to get stuffed into lockers for this sort of thing. Private, off the books, self-help.

  8. “Such a law would be unconstitutional.”

    – Professor Turley
    _______________

    Thank you very much, Professor. Now please explain to the communists (liberals, progressives, socialists, democrats, RINOs) how the entire American welfare state is, similarly, unconstitutional according to the immutable “manifest tenor” of the Constitution.

    Article 1, Section 8, provides Congress the power to tax only for “…general Welfare…” omitting and, thereby excluding, any power to tax for individual or specific welfare, redistribution of wealth or charity, all of which may only be accomplished in the free markets of the private sector.

    The 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute. The 5th Amendment may not be modified by legislation or adjudication. Congress may not make any claim to or exercise any modicum of dominion over private property.

    The entire communistic American welfare state is unconstitutional including, but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.
    __________________________________________________________

    “…courts must declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    _________________

    “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison
    ______________

    5th Amendment

    No person shall be…deprived of…property,…nor shall private property be taken…

    1. nor shall private property be taken for public use, without just compensation…

  9. The Constitutional Centrist answer is ‘of course not.’ But then they can’t force the Citizens to turn on the tube or buy tickets to the game either. Quid Pro Quo.

    Another situation. Can you force a city to have a police force? No. But then you don’t have to subsidize that city and the truckers don’t have to deliver things like gas, food, and Amazon.

  10. How is this proposed legislation any different from silencing and firing those who refuse to buy into the BLM and Defund-Police religion? This proposed legislation would FORCE fealty to the anthem the same as the BLM cult mob is forcing FEALTY to their cause. Interesting how those who are so eager to silence the rest of us fail to see the obvious.

    1. Suggest this hypothesis: he’s been a standard-issue careerist Republican. He strikes some pose in lieu of actually accomplishing something. Remember George Bush the Elder’s flag-burning amendment? The President proposed we go through a cumbersome amendment process to halt something that hardly ever happened. (The decision declaring flag-burning ‘speech’ was inane, but you’re surprised when appellate courts are better than inane on hot-button questions).

    2. DV. “ This proposed legislation would FORCE fealty to the anthem the same as the BLM cult mob is forcing FEALTY to their cause. ”

      Big problem there fella, BLM is not forcing fealty to their cause. Nobody is being forced to submit to their ideals. What they ARE doing is forcing others to realize that there is a problem. Forcing players to stand for the anthem is no different than a church forcing you to pray because it is disrespectful to their god. Taking a knee is a form of free speech. It is unconstitutional to say you can’t do that.

    1. Kneeling is a confession and acknowledgement of the complete, perpetual and immutable inability to assimilate. Oil and water will never mix and emulsifiers are always required. The political emulsifiers of generational welfare, affirmative action privilege, quotas, forced busing, WIC, TANF, HAMP, HARP, HUD, HHS, social services, Obamacare, etc. are unconstitutional.

      You communists (liberals, progressives, socialists, democrats, RINOs) ignore, violate and nullify the Constitution as enemy acts of treason when you illegally force the mixture through your unconstitutional edicts of dictatorship. You don’t like constitutional freedom so you dictate, even while you have no legal or constitutional power or authority to do so.

      1. How supremist of you, George!

        I’m sure you’re all for human chattel too, huh?

    2. “Kneeling is an act of patriotism. Kudos to all who kneel.”

      The *highest form*, I’m assured!

      This said… I don’t think such legislation would be good and proper even if its constitutionality were utterly defensible.

    3. Kneeling is an act of patriotism. Kudos to all who kneel.
      ********************
      It could be patriotic to the Chinese Communists but in common parlance, kneeling is submission. You wanna kneel to me have at it. I won’t reciprocate. I’ll probably laugh and dub you a beta male.

    4. Kneeling in the #BLM context is genuflection to a civil religion which demands absolute allegiance to its tenets and forbids they be ever be questioned.
      Every institution which pledges allegiance to #BLM on behalf of its employees and customers and parrots its Gospel that some deaths count more than others isn’t helping our nation.
      Anyone who tries to force such a religion on Americans will eventually find itself disappointed.

    5. Absolutely. That’s exactly what’s broadly overlooked about, Kap. At first, he sat on the bench and then consulted friends in the military to come up with the kneeling response. Standard form of respect in the military. When players are injured in sporting contests it’s standard fare to kneel until they are lifted up.

      The reactionaries have it all wrong.

      And I speak from a bit of experience here. I played basketball for a couple years in college and, in reaction to U.S. funding of death squads in El Salvador in the 80’s i actually sat on the bench in protest during the national anthem for some of our games. Caused quite the stir, and I was conflicted about it because my uncle, the guy I’m named after, died on submarine in the Pacific in WWII. Two other uncles fought in Europe in that war and my grandfather fought in WWI. My dad worked in intelligence for a stretch. There were a lot of voices stirred up by sitting in the 80’s…

      And you know who was most understanding about what I was doing? My family. They got it. They knew the aspects of the country that they fought for and the ones they could take or leave.

      Ultimately, I again stood for the anthem. I have much respect for Kap. He put it all down and was blacklisted for standing up for principles that are *obvious*. He protests against something that’s obvious. The right wingers that criticize him a) don’t understand the difference between sitting and kneeling and what each signify, and b) don’t understand that shining a light on deeply problematic issues doesn’t weaken the country but rather strengthens it.

      I wish that when I sat that I had the wherewithal of Kap to refine my protest and shift over to kneeling…, it’s really the perfect way to handle the internal conflict he faces.

  12. Gaetz left out the heel clicking and stiff arm.

    There is 2 possible legal component to this some have raised that I wish JT would address:

    1. Many stadiums are government owned. Does that affect the rights of employees inside them?

    2. Standing for the anthem is a political act or statement. Can employers force employees to make political statements?

    1. That’s the downside of free speach, you have to put up with somebody else’s BS.

  13. “U.S. Soccer affirms Black Lives Matter”

    I think U.S. Soccer should eliminate the pledge of allegiance and instead invite the highest ranking democrat official in the area to jog onto the field before each match and lead the fans in “Pigs in a blanket, fry ’em like bacon.”

  14. This is another example of the reality of the Constitution, any constitution. Constitutions have been around for thousands of years. Greek cities: Sparta, Athens, Thebes, etc all had constitutions. Carthage had a constitution. They also had senates and other governing bodies. From time to time they had singular leaders who would attempt to interpret the laws/constitutions to suit their own ends. Sound familiar?

    The second amendment contains not one word that refers to an individual’s right to bear arms. Yet today’s perverse interpretation, designed by private interests and purchased officials, including judges, goes against the core intention, ‘a well regulated militia’, for the ‘people’, the ‘state’, or society; and allows individuals to decide, in large, to arm themselves with arsenals of weapons for reasons peculiar to their own perverse desires.

    With this mutt from Florida’s desire to make it ‘constitutional’ that everyone think as he does we have an attempt at further perverting the Constitution. Constitutions were developed to keep this nonsense from happening.

    However, constitutions are only a reflection of those in power, ultimately decided by the Supreme Court. We have a Supreme Court that had a member give individual rights to corporations and give totally perverse meaning to the second amendment. Perhaps, we now have a Supreme Court that is capable to make it obligatory to stand, against the law to kneel, during the national anthem.

    Ultimately all this is done to further the best interests of the people. Obama and the Democrats were taken to task for being unconstitutional while attempting to improve health care. Will the blithering idiot and poltroon Trump and his dupes be taken to task for limiting the freedom of expression, kneeling prayer like?

    1. Off the main topic, but on the one you raise: the Bill of Rights gives the importance of “a well-regulated militia” as (we can infer) the founders’ primary motivation for guaranteeing the people’s right to keep and bear arms. In the revolutionary militias on which they would have been basing their judgment, some individuals were provided guns by a wealthy private individual, and other individuals would have brought their own.

      And of course we can readily infer further that the founders considered a well-ordered and armed militia to be important because in their very recent experience, the *British government* from which they ended up breaking, but which before the Declaration of Independence they uniformly recognized as *their* government, had been the precise entity that their militias were fighting. So how else can we interpret the founders’intent for the 2A except that sometimes the government must be opposed, and people can’t form a well-regulated militia to oppose it without having their own guns?

      Individuals’ other reasons for wanting guns are irrelevant to the 2A.

      1. The only independent clause in the Second Amendment – the one that is not qualified by any other text – is “the right to keep and bear arms shall not be infringed”.

        The dependent clauses don’t limit the application of the independent clause; they explain why it’s necessary.

  17. It would be nice if the whole issue hadn’t even come up. Since it has I guess the guy has certain rights. Being responsible in their expression seems be something that needs a bit of work. I m just a silly electrician what do I know.
    Take care, you one of the most honest characters I’ve seen in awhile. Something is broke. But China, America needs to be strong.

    1. Shame on the U.S. Soccer Federation.

      Black Lives Matter is an organized, race-hustling version of Al Sharpton, both of whom work insidiously to incite anti-white racism, racial animosity and violence.

      U.S. corporations, professional sports and pro athletes are routinely black-mailed and threatened by both Sharpton, BLM and their millions of racialist followers, and they pay ransom in the form of contributions to Sharpton’s non-profits and BLM, public endorsements of them and their racist goals and groveling demonstrations of physical and mental obeisance (kneeling, for example, before the racist mob leaders and confessing “white privilege” and taking a knee during the national anthem.)

      Matt Gaetz is a lot smarter than his comment. He probably thought, as did I, that the U.S. Soccer Federation and the U.S. Soccer Team receive loads of federal money, sort of like PBS and NPR, and use federal money (like PBS and NPR) to bite the hand that feeds them. If the Soccer Federation is private, then law is not the answer. If the U.S. Soccer Team gets federal money, then Gaetz’s approach should be deployed as a matter of national self-respect and patriotic dignity.

      But the big weapons are a) public shaming of the athletes, b) fans withdrawing their support of products sold by those corporations which endorse BLM and c) shutting down public support of ideologically-driven professional sports and athletes, as I have done with the NFL and the NBA and with professional football and basketball players and their corporate sponsors.

      I vote with my feet and treat all of them like I have treated the Washington Post and the NYT’s for 30 years: “I don’t like it; I don’t read it.”

      After all, an intelligent, mature person surely should not rely on rich man-boys who have spent their entire lives playing a game for advice on anything important.

  19. The thing to do is hit soccer where it lives, in its pocket book. So, I am no longer going to follow either men’s or women’s soccer on tv, thereby missing those wonderful ads that help pay the salary of the athletes.

  20. Have all Congressmen stand when Congresswomen come into the House.

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