Say No to Forced Patriotism: SB4’s unconstitutional effort to mandate the National Anthem at sporting events in Texas
This column, which I wrote with Dr. Amy Kristin Sanders from the University of Texas, originally ran in the Houston Chronicle on April 12, 2021. Now that the Texas Legislature will likely take up the bill for a vote this week, I’m posting it here on Medium.
Before the 2023 legislative session, Texans should require their lawmakers to pass a class in constitutional law. The complete disregard for First Amendment rights during this legislative session is shocking and saddening.
In April, the Senate passed SB 4, which would require professional sports teams to play the national anthem. It was the brainchild of Lt. Gov. Dan Patrick, who ironically worked in broadcasting before entering politics.
Patrick was upset Mark Cuban’s Dallas Mavericks hadn’t been playing “The Star Spangled Banner” before home games. In a statement earlier this year, Cuban said, “We respect and always have respected the passion people have for the anthem and our country. But we also loudly hear the voices of those who feel that the anthem does not represent them. We feel that their voices need to be respected and heard because they have not been.”
In Patrick’s quest to mandate patriotism, he seems to have forgotten about the First Amendment. Yes, that pesky right to freedom of speech that so inconveniently prohibits the state from doing exactly what SB 4 seeks to do: compel private actors to distribute a government-mandated message. In any other time and place, we’d associate such ridiculousness with Nicolás Maduro’s Venezuela or Kim Jong-Un’s North Korea.
SB 4 asserts that because teams play in taxpayer funded stadiums that the government has the right to control their speech. That’s simply untrue.
You might think that the U.S. Constitution has no bearing on what the state does; it’s clear the Legislature doesn’t believe it must respect the Bill of Rights. A long line of Supreme Court cases, however, tell us otherwise.
In 1943, the Supreme Court struck down a state requirement that teachers and students salute the flag. Writing in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson noted, “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.”
Thirty years later, the court ruled New Hampshire couldn’t force residents to display its “Live Free or Die” motto on their license plates. Both of these represent what First Amendment lawyers call “compelled speech” — being forced to say something against your will.
More recently, Chief Justice John Roberts reiterated this protection in Rumsfeld v. Forum for Academic and Institutional Rights, “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”
The court has repeatedly said that when the government wants to compel a private actor to speak, it must overcome a high burden. In 2018, the court ruled California could not require women’s clinics to post government-drafted notices. Justice Clarence Thomas wrote, “By compelling individuals to speak a particular message, such notices alter the content of the speech.”
As a result, the U.S. Constitution protects you and professional sports teams from the government forcing us to play the national anthem. Sure, the NBA can and did make the Mavericks cue up the band, but the NBA is a private entity not subject to the First Amendment. The Texas Legislature can no more compel teams to play the national anthem before games than they could require Pat Green’s “I Like Texas” afterward.
Although Patrick likely spearheaded the bill, the chicanery is bipartisan, with SB 4 passing 28–2. Introducing unconstitutional laws certain to be challenged in court and struck down wastes Texans’ time and tax dollars. Plus, it’s downright embarrassing for Texans who believe the right to protest and dissent are sacrosanct to our republic. Free speech is a fundamental democratic value; protecting our speech rights (including those not to speak) isn’t a partisan issue. Tell your legislators that forcing teams to play the national anthem is anything but patriotic.