Have Trump’s tweets aided the kneelers’ legal position?

The Washington Post wants to create that impression. Its story on the subject is called (in the paper edition): “Trump may have bolstered kneelers’ legal position.”

No sound argument supports this notion. The Post’s Tracy Jan who, according to the paper “covers the intersection of race and the economy,” peddles the view that Trump’s talk about revoking the NFL’s tax breaks means that the government is now infringing free expression.

As a private employer, the NFL has the right to require its players to stand for the National Anthem. Hence, it is not vulnerable to a constitutional claim if it chooses to do so (a step that, personally, I wouldn’t want the League to take).

The government, though, is limited by the First Amendment. Thus, Jan’s sources say, if the NFL, in the aftermath of Trump’s tweet about ending tax breaks, restricts its players ability to express their political feelings by kneeling, the players could claim that the government has violated their First Amendment rights by bullying the League into punishing them.

Unfortunately for the kneelers, this argument should fail for several reasons. First, it’s my understanding that the NFL no longer is tax-exempt. In any event, Trump can’t determine the League’s federal tax status. That power resides with Congress.

NFL teams sometimes get tax breaks and funds to build stadiums. When they do, the decision is made locally. President Trump has no say.

Thus, Trump cannot, through comments about tax breaks, “bully” the NFL into limiting the expression of professional football players.

Second, even if Trump could affect the NFL’s tax status (or that of particular teams), the kneelers would face huge barriers to showing that a decision by the League to punish them was the result of the president’s tweet. Deep into her article, Jan acknowledges the problem:

It could be difficult, however, to establish a strong enough link between Trump’s threat and the NFL’s decision to show that the league was responding to pressure from the president.

The aggrieved player would have to establish that he has standing to sue the government and that he was disciplined as a direct result of Trump’s actions. The NFL could argue that it came to the decision on its own — that it was not reacting to Trump, but to its audience melting away.

That argument should be persuasive to any trier of fact who is not part of the anti-Trump resistance (some federal judges are part of that resistance, though). For a rational employer, the realistic prospect of losing customers — or even just alienating them — is a more than plausible explanation for punishing behavior that carries that prospect. And in this case, there is evidence from which the NFL could easily conclude that the kneeling does result in lost customers.

It’s likely that Trump’s tweets have contributed to the loss of customers. But Trump has a First Amendment right to criticize the kneelers and to say that he favors punishment for them (though, personally, I would prefer that he not do so). Only his “threat” against the NFL might be legally problematic.

However, as argued above, it isn’t problematic because (1) Trump lacks the power to determine tax issues regarding the League of tax breaks, (2) the League doesn’t claim tax exempt status and (3) the NFL would, in any case, have a convincing argument that a decision to punish the kneelers was the result of the desire to keep customers in the fold.

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