I 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.