The culture clash over the national anthem and kneeling has largely stayed away from actual lawmaking, until now.
Ten Texas state senators introduced a bill this month, Senate Bill (S.B.) 4, that would require pro sports teams to play the national anthem at the beginning of each preseason, regular season, and postseason game hosted in Texas. It bars governmental entities at the state and local levels from entering agreements with sports teams that require a financial commitment unless the agreement includes written verification the team will play the anthem before all games. If a team fails to comply, it would be in default of the agreement.
The bill didn't come out of the blue. Lt. Gov. Dan Patrick (R) vowed to introduce a bill back in February when it was reported that the Dallas Mavericks hadn't been playing the anthem before their games. For 13 preseason and regular-season home games, team owner Mark Cuban decided to skip the national anthem, and it took a while for anybody to notice (perhaps because fans were only present for the last of those games). Following reports about Cuban's decision, the NBA announced that with fans coming back into arenas, it would once again enforce its longstanding rule requiring the anthem before games.
Presumably, if this bill became law and a major sports league actually allowed a team to stop playing the national anthem (which seems a bit unlikely if even the NBA is still requiring it), it would affect stadium subsidies, any kind of government-funded tourism sponsorship, and possibly even arrangements where local law enforcement provides security. However, the bill would likely not stand up to judicial scrutiny.
"As a private organization, the NBA may legally require its teams to play the national anthem before games. Those teams cannot claim such an action violates their free expression rights," Amy Kristin Sanders, an attorney and a professor at the University of Texas Austin School of Journalism, told Law&Crime. "But Patrick's proposal that the Texas Legislature pass a state law requiring the national anthem be played represents state action. As a part of its speech protections, the First Amendment also bars state actors from compelling others to speak—and requiring someone to play the national anthem is just that."
In late February, several Tennessee legislators attempted to infringe on the speech rights of athletes via a different route. Those legislators wrote a letter to the state's public university presidents and chancellors asking them to prohibit student-athletes from kneeling during the national anthem. But, as Reason's Robby Soave wrote, "if the university could force student-athletes to stand for the national anthem, then it could force any student to do so—and this would obviously be unconstitutional."
The 10 Texas senators who authored S.B. 4 (nine Republicans and one Democrat) make up nearly one-third of the chamber. Hopefully, their colleagues recognize the First Amendment supersedes scoring political points.
