President Trump has been busily tweeting that there oughta be a rule: “The NFL has all sorts of rules and regulations. The only way out for them is to set a rule that you can’t kneel during our National Anthem!”
This was, of course, just one of his many forays in response to the recent league-wide protest begun by Colin Kaepernick’s kneeling during the anthem to protest inequitable and excessive instances of state force. Yet it seems not to matter what those who are kneeling say their action meant: “We chose to kneel because it’s a respectful gesture,” wrote San Francisco 49ers safety Eric Reid in The New York Times of his and Kaepernick’s decision. “I remember thinking our posture was like a flag flown at half-mast to mark a tragedy.”
No matter: To Donald Trump, kneeling in sorrow is both a sign of disrespect for the rules of the game and a desecration of the American flag. If Trump were just some random armchair grouch, that wouldn’t be so worrisome. But he is not a private citizen; he’s our president, and everything he says carries the weight of that office.
There are at least two grave legal implications to what the president has been urging—one of private law, the other constitutional.
The first concern is that executive power is being used to interfere in contract relations between private parties. Yes, rich owners and their rich celebrity employees, but still: private parties. Trump’s tweeted injunction, moreover, was deployed by a head of state against citizens whose political views he doesn’t like. This resembles the sort of pressure applied by the House Un-American Activities Committee and its Senate counterpart, the Permanent Subcommittee on Investigations, which was chaired by Senator Joseph McCarthy (and whose lead counsel, let it not be forgotten, was Trump’s mentor, Roy Cohn). At least 300 members of the motion-picture industry were blacklisted as a result of that politically motivated purge. Few ever recovered their careers.
Such heavy-handed state influence has a long history of legitimizing discrimination. After all, one shouldn’t have to give up basic civil rights in deference to a service or employment contract. A contractor who fires someone simply for being a Democrat or a Republican, for being gay or a woman—these are all situations that may trigger judicial scrutiny. By the same token, contractors who discriminate unfairly among their customers may trigger the same kind of scrutiny. This latter point will be adjudicated by the Supreme Court in its current term, in a complaint brought before the Court by Jack Phillips, a Colorado baker. Backed by Trump’s Justice Department, Phillips maintains that his religious beliefs prevent him from making wedding cakes for gay couples. Yet permitting him to opt out of antidiscrimination laws would ultimately undermine their application everywhere—department stores, hotels, restaurants, florists, planes, trains, and buses. The long-standing norm of fair and equitable public accommodation would be rolled back to the era of Jim and Jane Crow. As Louise Melling of the ACLU argues, “No bakery has to sell wedding cakes. But if it chooses to sell wedding cakes it can’t turn away some customers because of who they are.” Similarly, terminating the employment of professional athletes for expressing a view that has nothing to do with their job may be construed as a form of discrimination against “who they are.”