Sunday, May 13, 2007

Yankees Follow-up: Private Threats to Constitutional Values

As I noted in my post Friday, the fact that the Yankees are not the state---and thus not bound by the Constitution---does not justify their taking action which, if undertaken by a state actor, would be a constitutional violation. Indeed, as I argued a few weeks ago in a FindLaw column about Don Imus, private acts can threaten the values underlying constitutional guarantees. And that's true even when the underlying action would not amount to a constitutional violation if there were state action.

Take the Yankees example and let's assume arguendo that the Yankees were owned and operated by NYC. (Goodbye George Steinbrenner, hello Mike Bloomberg). It's pretty clear that the Yankees would still be entitled to demand respectful silence during the playing of the national anthem and God Bless America. Notwithstanding the reference to God in the latter, the singing of the song would not violate the Establishment Clause because it would amount to mere "ceremonial deism" rather than an actual prayer. Moreover, unlike contexts such as a high school graduation or even a high school football game, attendance at a Yankees game is on a purely voluntary basis, and once there, fans are not required (either literally or by peer pressure) to participate. (Contrast the Supreme Court's decisions in Lee v. Weisman and Santa Fe Indep. School Dist. v. Doe, finding graduation and high school football prayers unconstitutional). The argument that the Yankees practice violates the First Amendment would have to claim that it amounts to coerced speech of the sort found invalid by the Supreme Court in the 1943 flag salute case (West Va Bd. of Ed. v Barnette). But the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen. If subject to First Amendment scrutiny, the Yankees policy would almost certainly survive as a reasonable time, place or manner restriction.

But again, that's not to say that the policy is a good idea, whether or not it's subject to First Amendment scrutiny. Sporting events tend to elicit a kind of militaristic patriotism, even without official encouragement from the powers that be. Perhaps I'm reading too much into the atmospherics of the game, but when I hear Yankee public address announcer Bob Sheppard ask for the crowd to stand in honor of those who are fighting and those who have fallen to defend "our freedom" and "our way of life," I can't help thinking that the message conveyed is not merely that the members of our armed services signed up for and have made enormous sacrifices because they believed they would thereby be defending American ideals, but that these sacrifices actually have achieved something in the direction of these goals. Someone who thinks, as I do, that the colossal policy mistakes of the civilian leadership have in fact harmed these causes, is meant to feel marginalized. George Steinbrenner is legally and even morally entitled to think whatever he wants about the Iraq war and the best way to support our troops. He also has the legal right to leverage his ownership of the Yankees to make thousands of fans who hold very different views about what patriotism entails listen to his viewpoint. However, in these circumstances, no plausible account of the value of free speech counts that legal right as anything other than a cost of protecting the expression of private views. A more humble team owner would understand that fans come to the game united (mostly) in their support of the Yankees but divided about how best to support the troops. Treating us as a captive audience disserves the values of free thought and viewpoint diversity that underwrite the First Amendment.

Meanwhile and not entirely unrelatedly, as Anil more or less warned in the post immediately preceding this one (and thus right below) it now appears that pro-government forces in Karachi, Pakistan have used the visit of Chief Justice Chaudhry as an opportunity/excuse for violence, which will in turn be blamed on the very people protesting the authoritarian tactics that will now be argued are justified to stop the violence. I say not entirely unrelatedly because General Musharraf has used the with-us-or-against-us approach to global terrorism of the Bush Administration as a means of prolonging his own rule and resisting any pressure the U.S. might try applying for him to reform (or step down). It's true that things could go worse for us in Pakistan; a nuclear-armed fundamentalist Islamist regime is the standard nightmare scenario. And the experience in Iraq should be sobering about what happens when you topple a secular dictator in the hope of fostering democracy. Still, the fact that it would be insane to invade Pakistan doesn't mean we have to be happy about Musharraf's contempt for democracy and the rule of law.