The First Amendment Bars Officials From Targeting Nike Because They Don鈥檛 Like Colin Kaepernick
In response to the Nike ad campaign featuring NFL player and activist Colin Kaepernick, some state and local government officials in , , and have sought to discourage or prohibit the purchase of Nike products in various ways.
While everyone is entitled to have their own opinion about the ads 鈥� including public officials 鈥� government efforts to boycott a company based on hostility to its political expression violate the First Amendment. That鈥檚 because one of the most fundamental precepts of the First Amendment is that the government can鈥檛 act to suppress one side of a public debate.
In 2016, Kaepernick famously to protest police violence against minority communities, provoking vigorous debate about the relationship between protest and patriotism, the place of politics in sports, and free speech in the workplace. In the ads, Nike asks people to 鈥淏elieve in something, even if it means sacrificing everything.鈥�
Kaepernick has indeed sacrificed enormously for his beliefs, as his protests effectively brought an . Although Kaepernick and his allies have repeatedly made it clear that their grievances are directed at systemic racism, some politicians 鈥� including 鈥� have insisted that the protest is disrespectful to police and military personnel.
Regardless of what officials may think about the protests, the First Amendment prohibits government from discriminating against individuals and organizations based on the content of their speech and the viewpoints they express. The attempts to punish Nike in Rhode Island, Mississippi, and Louisiana all violate the spirit of the First Amendment, although the specifics of each situation are different.
This week in Rhode Island, the North Smithfield Town Council passed a resolution 鈥淩equesting the School Committee and all Municipal Departments to Refrain from Purchasing Nike Products.鈥� Town Council President John Beauregard, a former state trooper, that he introduced it because of the 鈥渄isrespect鈥� and 鈥渘egative comments that Colin Kaepernick has shown toward police officers." The 老澳门开奖结果 of Rhode Island sent a to the council warning that if 鈥渕unicipal agencies decide to take action consistent with the resolution, the Town and its taxpayers will face both legal and financial liability for violating the First Amendment.鈥� Beauregard backed down, saying that he would in response to the negative feedback he had received.
In Mississippi last weekend, the head of the state police said that his department would no longer purchase Nike products, saying that he 鈥渨ill not support vendors who do not support law enforcement and the military.鈥�
The 老澳门开奖结果 of Mississippi , explaining, 鈥淲hatever you may think about Nike or Colin Kaepernick, political protests are a legitimate form of non-violent speech, and are protected by the First Amendment. When Kaepernick took a knee, it was not in opposition to law enforcement or the military nor was it disrespectful to this country. It was in protest of the pervasive racial injustice that still remains in our country.鈥�
Mississippi Gov. Phil Bryant supported his Department of Public Safety commissioner, saying, 鈥淗e has a right to determine what vendors DPS does business with, and it鈥檚 not going to be with a company that pays an individual who has slandered our fine men and women in law enforcement.鈥�
Actually, the government does not have the right to retaliate against a government contractor based solely on hostility to the contractor鈥檚 political speech. In both of these cases, the government was wrong to impose ideological litmus tests on its contractors and vendors.
In Louisiana last week, the mayor of Kenner, E. 鈥淏en鈥� Zahn III, issued a policy prohibiting private booster clubs using city facilities from buying or using Nike products. The 老澳门开奖结果 of Louisiana warned Zahn in a letter that his actions violated the First Amendment and advised him to rescind the policy immediately, which he did. This situation is somewhat different than the first two, because it also affects private booster clubs. The government cannot stop individuals or groups from patronizing a certain business simply because officials don鈥檛 like that company鈥檚 political views.
The officials in Louisiana and Rhode Island did the right thing and Mississippi should follow suit. The 老澳门开奖结果 will continue monitoring the situation to see if the First Amendment is violated. In the meantime, we encourage other local government officials contemplating similar bans to take heed of the First Amendment before trying to use their offices to impose their views on others.
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老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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