Texas official wants all publicly funded events to play the national anthem — and legal experts cry foul

Texas official wants all publicly funded events to play the national anthem — and legal experts cry foul
The Right Wing

In Texas, far-right Republican Lt. Gov. Dan Patrick has championed a bill that would require the U.S. national anthem to be played at all events in the state that receive public funding. But experts on constitutional law are crying foul and responding that Texas Senate Bill 4, a.k.a. the Star Spangled Banner Protection Act, would be a blatant 1st Amendment violation.

SB 4 is a response to Dallas Mavericks owner Mark Cuban announcing that the basketball team will no longer be playing the U.S. national anthem. Patrick's position: "The Star Spangled Banner," under state law, should be mandatory at games, not optional.

In an official statement, Patrick said, "It is hard to believe this could happen in Texas, but Mark Cuban's actions of yesterday made it clear that we must specify that in Texas, we play the national anthem before all major events. In this time, when so many things divide us, sports are one thing that bring us together — right, left, black, white and brown. This legislation already enjoys broad support. I am certain it will pass, and the Star Spangled Banner will not be threatened in the Lone Star State again."

Abhi Rahman, communications director for the Texas Democratic Party, was unimpressed with Patrick's grandstanding and told the Austin American-Statesman, "Patrick continues to yap and yap while Texans continue to get sick, lose their livelihoods and die. That's the Dan Patrick way."

After Cuban's announcement, the National Basketball Association directed all of its teams to continue playing the national anthem "in keeping with longstanding league policy." But reporter Jerry Lambe, in Law & Crime, notes that "there is a significant distinction between such an anthem mandate being required by a private organization, such as the NBA, rather than being imposed by state actors."

Lambe explains, "The issue of state-compelled speech has repeatedly been addressed by the U.S. Supreme Court — most recently, in the 2013 case Agency for International Development v. Alliance for Open Society International. In a 6-2 decision penned by Chief Justice John Roberts, the Court ruled that requiring private organizations vying for federal funding to adopt policies explicitly opposing prostitution was a violation of the 1st Amendment."

Lambe, in his article, goes on to quote some legal experts on the subject. Amy Kristin Sanders, who teaches media law at University of Texas, Austin School of Journalism, told Law & Crime, "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. This is akin to the NFL saying that players could not take a knee in protest. Neither of these situations raises 1st Amendment issues because they involve private entities rather than the government."

Sanders continued, "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 1st Amendment also bars state actors from compelling others to speak — and requiring someone to play the national anthem is just that. Under our current jurisprudence, his proposal is clearly unconstitutional and would violate folks' right to free speech."

Ian Millhiser, a legal analyst for Vox, tweeted:

Philadelphia-based attorney Max Kennerly weighed in as well, humorously tweeting:

Jim Noble, an assistant U.S. attorney in Texas, commented:

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