National anthem as a mandatory game-starter? Florida free-speech test.
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Patrik Jonsson Staff writer
| Jacksonville, Fla.
The bellwether state of Florida now is amping up the volume in a nationwide discourse on race as聽a core facet of political culture wars.
Under Gov. Ron DeSantis, a potential top contender聽for the 2024 Republican presidential nomination, the state has raised penalties for organizers of protests,聽banned teachers from putting the words 鈥渃ritical鈥� and 鈥渞ace鈥� next to each other in a sentence, and barred professors from testifying against state policies on voting rights and public health mandates. All of those moves carry racial implications. And many are headed for court:聽A judge issued an injunction against the 鈥渁nti-riot law,鈥� calling it聽鈥漜onstitutionally vague.鈥澛�
Now state lawmakers are debating a bill that would compel private sports teams like the Jacksonville Icemen聽or Miami Dolphins聽to play 鈥淭he Star-Spangled Banner鈥� at each game. Note: This already is a pregame tradition for professional sports. Codifying it into law could run into First Amendment challenges.
Why We Wrote This
A move by Florida legislators, aimed at making the national anthem a compulsory feature of sporting events, raises some big questions about free speech 鈥� especially in the context of wider turbulence over politics and race.
Governor DeSantis has rhetorically situated the Sunshine State as 鈥渇reedom鈥檚 vanguard.鈥澛�
Yet聽many say聽moves by Republicans in Tallahassee to use the power of the state to arbitrate what citizens say, when they say it, and how they say it have put the Sunshine State at odds with the warning contained in a 1943 U.S. Supreme Court ruling penned by Justice Robert Jackson: that 鈥渘o official ... can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.鈥澛�
That landmark ruling affirmed that聽the First Amendment protection of free speech shields public school students from being forced to salute the American flag or say the Pledge of Allegiance.
That the current聽debate is playing out partly in hockey rinks聽in Florida is no surprise to Steve Miska, president of First Amendment Voice, a nonpartisan think tank.
鈥淪ports are the closest thing we have to tribalism in the U.S. besides political parties nowadays 鈥� and political parties are losing a lot of their appeal,鈥� says Mr. Miska. 鈥淚 think this is going to be a messy place鈥� for the First Amendment.
The anthem as a focal point on race
Much like fisticuffs in hockey, the national anthem is part of the spectacle and entertainment.聽
But when primarily Black athletes began taking a knee during the anthem in solidarity with social justice protests聽over controversial instances of Black people being killed by police,聽then-President Donald Trump and many other conservatives saw it as a culture-war demarcation that could be used for political effect.
A decision by Dallas Mavericks owner Mark Cuban to forgo the anthem at the height of protests over the murder of George Floyd in 2020 heightened the backlash.
When Texas passed the first law to mandate the anthem last fall, 10 of 13 Democrats in the state Senate approved it.
For David Papaj in Jacksonville, a fan of the Icemen, that kind of bipartisan support is a no-brainer. 鈥淚 mean, what team wouldn鈥檛 play the national anthem? We鈥檙e Americans, right?鈥�
A conservative brand of freedom聽
In that way, Governor DeSantis has argued that Florida is setting standards that patriots like.聽
In his view, Americans 鈥� including liberal ones 鈥� are flocking to Florida because it represents ideals like low taxes and the individual鈥檚 right to make health decisions around masks and vaccines.
鈥淲hile so many have consigned the people鈥檚 rights to the graveyard, ... Florida has stood strong as a rock of freedom,鈥� he said this month in his annual State of the State speech.
Governor DeSantis has painted himself as a First Amendment champion. Florida became the first state to impose sanctions against social media companies that 鈥渄eplatform鈥� politicians for violating their terms of service agreements around hate speech and spreading misinformation.
Now聽committees in the Florida Legislature are pushing聽forward a bill that would bar teachers from airing ideas that would cause any student 鈥渄iscomfort, guilt, anguish鈥� or distress about their race, gender, or national origin. The bill pits itself against education efforts such as critical race theory, which, in the eyes of opponents, promotes white guilt for racial聽sins in the nation鈥檚 past.聽
Democratic lawmakers say the measure is effectively gagging teachers and making it impossible for people of color to speak about their own lived experience.聽鈥淚鈥檓 not anti-American, but I am an American, and my voice matters just as much as your voice,鈥� Rep. Ramon Alexander said in Tallahassee, speaking about the bill barring teachers from making students 鈥渇eel uncomfortable鈥� during lessons. At one point, he grew tearful talking about his own patriotism and singing the national anthem. 鈥淢y reality matters as much as your opinion. And you can鈥檛 handle the truth.鈥�
Anticipatory obedience
Courts have found evidence that lawmakers are also engaging in picking and choosing viewpoints, and using the power of the state as a way to enforce their preferred views.
The strategy, experts say, hangs on a legal concept called anticipatory obedience, or self-censorship for fear of retribution.
How it works was outlined in a recent U.S. District Court ruling that found the state-funded University of Florida system violated the constitutional rights of six professors by barring them from testifying on public health and voting rights, when their views would be at odds with state policy.
In a blistering ruling聽on Jan. 21, U.S. District Judge Mark Walker found that the university used an arbitrary approval process for professors to speak to courts or the media that caused 鈥減alpable reticence and even fear on the part of faculty to speak up鈥� on hot topics.聽
In his ruling, Judge Walker聽said university administrators appeased lawmakers聽by comparing聽respected faculty to 鈥渕oonlighters,鈥� 鈥渞obbers,鈥� 鈥渢raitors,鈥� 鈥減olitical hacks,鈥� and 鈥渄isobedient liars.鈥� The effect, wrote Judge Walker, is the chilling of speech by teachers whose viewpoints are of 鈥渢ranscendent value鈥� to society.聽
鈥淎 democracy allows people to determine what the public opinion is,鈥� says Robert Post, a law professor at Yale University in New Haven, Connecticut. 鈥淎 country which is totalitarian wants to shape the nature of public opinion. It does that by preventing people from speaking, and it does it by requiring people to speak in ways that are false or they don鈥檛 believe. Both are fascist. That鈥檚 what you see evidence of here.鈥澛�
Simmering tensions in society
A recent incident at Jacksonville鈥檚 hockey arena shows, at least to some, the problems with聽shutting down how people speak about a topic fraught with such enduring tension as race.聽
During overtime play, a Black player for the South Carolina Stingrays looked around to see a white Jacksonville Icemen player making what he called 鈥渕onkey gestures鈥� at him. The Black player, Jordan Subban, commenced to punch the white player, Jacob Panetta, in the face several times. The bench cleared.聽
Later, the Icemen cut Mr. Panetta from the roster, and he has been suspended for the rest of the season by the league, the ECHL.
Mr. Panetta apologized, saying he didn鈥檛 intend to make a racist gesture. He said he was taunting Mr. Subban for only fighting when referees are close by. Instead of a monkey gesture, Mr. Panetta said it was an 鈥淥h, you鈥檙e such a big guy when the refs are around鈥� bodybuilder gesture.
But for New Jersey Devils defenseman P.K. Subban, the brother of Jordan Subban, the taunts fit a larger pattern where papering over the past can give liberty to discriminate and hate in the future. It was the second alleged racial taunt by a white player against a Black one in the U.S. minor leagues in a span of a few days.
And those taunts came just days after a Florida House education committee stamped its support on what critics call the 鈥渨hite discomfort鈥� bill.聽聽
鈥淔or us, this is life,鈥� P.K. Subban told reporters last weekend. 鈥淭his is life for us, and that鈥檚 what is sad. This is life for people who look like me who have gone through the game of hockey. And that鈥檚 part of the history, whether we like it or not.鈥�
Mr. Miska, a retired Army colonel, spent 40 months on combat duty in the Middle East. Today, many of his veteran buddies struggle to understand tendencies by political leaders to use the state to either punish or compel speech to enforce or denounce a particular viewpoint 鈥� in a sense exploiting instead of seeking to bridge racial divides.
鈥淭he danger is what [Harvard professor] Arthur Brooks calls the 鈥榬hetorical dope peddlers鈥�: people who profit from the division and the polarization,鈥� says Mr. Miska. 鈥淎nd maybe that鈥檚 the norm for our country.鈥澛�
For Icemen fan Joe Ferraro, 鈥淭he Star-Spangled Banner鈥� is hardly divisive. If fandom is tribal, then, to him, the singing of the anthem is a reminder that everybody belongs to a bigger team.
His father, a Marine, made him stand lock-straight whenever the national anthem played on the TV before a game. On Saturday night, there Mr. Ferraro stood, ramrod straight, baseball cap over his heart.
It bothers him that some Americans don鈥檛 seem to understand how respecting traditions can be a cornerstone of national unity.
Yet after having spent a career in the military himself, he senses a false note.
Forcing a team to play 鈥淭he Star-Spangled Banner,鈥� he says, 鈥渄oes feel like communism.鈥�
