Tuesday, May 29, 2018

The NFL Players Have No Case On Not Being Allowed To Kneel Etc.



A correction and a further couple of thoughts.

The correction:

I reread Turley, whom I suggest you read if you haven’t—he’s short, clear and to the point. I said there may be a way into the constitutional issues by way of the collective bargaining agreement, which way, I said, I don’t understand but there it is. Well, it’s not a way in: the argument would be that the CBA properly understood prohibits the decision by the NFL to penalize on field kneeling. Whatever the merits of that argument, that’s precisely a contractual issue not a constitutional one and as such has nothing legally to do with 1st Am claims.

The thought or two:

I’ve seen online some fanciful thinking—fanciful in my and Turley’s view, no disrespect to Martin—that Trump’s inveighing here implicates state action. And Ken is right to note that a court might stretch a point, to my mind stretch beyond proper legal limits, to affirm that implication, just as the New York judge held that Trump couldn’t constitutionally block people from his Twitter account, reasoning on the basis of the doctrine of public forum, and just as lower courts have bent themselves into legal pretzels to strike down various Trump initiatives more as a matter of the “resistance” than as a matter of sound legal reasoning. You see this kind of trashing of established doctrine by such eminent Trump haters such as Lawrence Tribe and, less eminent, Richard Painter, who both seem to have gone off the deep end. So far SCOTUS has gone out of its way to resist the resistance, so to say, and, so to say, lay down the law. Which all circles back to Ken’s correct observation of what a court might do. But Ken’s observation generalized to a theory of adjudication suffers, to my mind, by not recognizing that while in hard cases, in which competing legal principles and their underlying values are virtually equally compelling, ideological presupposition informs adjudication—there’s no doubt about that, still disinterested legal reasoning also informs it and there’s marked tension between the two. (Dworkin argues that even in hard cases there’s always necessarily one right principled answer.) But as cases get less hard, as established doctrine is less conflicted, then usually presupposition recedes and disinterested analysis prevails. And so with the doctrine of state action so firmly and clearly established, with the NFL and its own decision making as an insuperable obstacle to state action here, it would be aberrant in the worst sense of judicial activism for an argument for state action to prevail.

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