National Anthem Bill Raises Ethical, Legal Questions

Tallahassee, FL – A new bill proposal making its way through Tallahassee is bringing up a series of ethical and legal questions, the main being: can the state require a business to play the national anthem? Furthermore, can a state hold government money for a business not participating in the national anthem? If Senator Joe Gruters’ (R-Sarasota) proposal, SB 1298, were to pass, that could be the case. The bill’s text prohibits the state from entering into any agreements with a professional sports team/venue unless specific provisions are met. One of those provisions requires—with written verification—that a team plays the national anthem before each and every game. While that may sound rather harmless, teams that don’t meet that provision will have to “repay any money paid to the team by the state or any governmental entity or classifying the team as ineligible to receive further money under the agreement.” Meaning, if the team receives any money from the government, they’ll have to pay it back, and they could lose eligibility for future government funding. When asked by Sen. Victor Torres (D-Kissimmee) if this was a problem before during a January 18 meeting of the Senate Committee on Commerce and Tourism, Sen. Gruters said he didn’t know of any instances of it happening, but wanted to be “proactive” and make sure sports teams play it. However, there are instances of teams outside of Florida choosing not to play the anthem. In 2021, Dallas Mavericks owner Mark Cuban was called out after his team stopped playing the anthem—a decision he made after supposedly talking to NBA commissioner Adam Silver. Cuban said in a February 2021 ESPN report that the decision came after the team consulted its community which felt the national anthem didn’t represent them. Cuban told ESPN that the team didn’t cancel the anthem, adding that they still displayed their American flag and everyone still had the opportunity to address it and do what they wished.  In essence, a private business listened to its consumer base and made a decision based on its feedback. So should a business be punished for doing so? What’s the ethical and legal standing of this issue? Senior Attorney Emerson Sykes with the American Civil Liberty Union’s (ACLU) national office says one problem deals with the First Amendment of the US Constitution, more specifically, the compelled speech doctrine that says the government cannot force an individual or group to support certain expressions. “The government isn’t allowed to force private actors to say particular things anymore than they’re allowed to prohibit them from expressing their ideas,” said Sykes. The compelled speech doctrine Sykes is referring to harkens back to a landmark Supreme Court decision that came with 1943’s West Virginia State Board of Education v. Barnette. That case helped strike down a West Virginia statute that imposed penalties on children and their parents if a child did not participate in the Pledge of Allegiance in school. Punishments for children included expulsion, and parents could be fined $50 and spend 30 days in jail. The state—in the interest of “national cohesion”—argued that a mandatory flag salute was a way of encouraging and developing patriotism. However, the court ruled that a compulsory salute was not the most effective way to develop patriotism. In his opinion on the case, Justice Robert H. Jackson said: “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 matters of politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word their faith therein.” Under Sykes’ interpretation of the decision, he says the Supreme Court ruled that the government cannot make someone take a “loyalty oath.” “The government cannot force an individual to take a loyalty oath, that’s not a part of our democracy,” said Sykes. But Sykes believes the entire situation involving SB 1298 is a bit more nuanced than the West VA v. Barnette case. Sykes says a government has full power to grant funding to businesses and disperse that funding how they see fit. “But they can’t say ‘once you accept government money then you’re giving up all of these other rights that are totally unrelated.’” A January 19 analysis of the bill also highlighted some of the proposal’s possible constitutional shortcomings. While the Supreme Court has already established that the government may “attach reasonable and unambiguous conditions” to federal assistance that institutions are not obligated to accept—Grove City College v. Bell—there is a precedent that limits the government’s ability to place conditions on the receipt of funds. In Board of Commissioners, Wabaunsee County. v. Umbehr, the Supreme Court ruled that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit.” Sykes says also requiring private entities to enter into an agreement such as this could put business owners in a difficult position where they feel as if they’re being required to sign a loyalty oath. They might not have an existing problem playing the national anthem, but they might have a problem if playing the national anthem was suddenly mandated. It’s especially ironic since this bill comes at a time when one of the most talked about issues in the state of Florida is being required—or mandated—by the government to do something; such as being mandated to be vaccinated for COVID-19. While the two are completely separate and different issues, the point is rather the same: people and businesses want to make their own decisions without fear of persecution or the fear of losing something because of saying no. On its last action, SB 1298 was approved by the Committee on Commerce and Tourism with a 7-1 vote and is now in the Community Affairs Committee. It’s unclear when the bill will be talked about again, as it does not appear on the committee’s agenda for its upcoming meeting on February 5. News Daytona Beach has reached out to Sen. Gruters’ office three separate times—twice by phone, once by email—for comment on the bill and we still have yet to receive a response.