Earlier this week Mark Cuban made headlines by announcing that not only had the Dallas Mavericks not been playing the National Anthem before home games so far this year, but that they would continue not doing so. I know, that’s a poorly worded sentence. But you get the idea. As one could imagine, this caused a bit of a stink. There was reaction from the political left and political right as to how not playing the Anthem was offensive, but I’m not here to discuss the politics of it for the moment.
The Mavericks released a statement (pictured below), basically saying that while the team respects the Anthem, they also understand why it has been used as a vehicle for protest, especially since Colin Kaepernick first took a knee a few years back.
Now, I want to make it perfectly clear that I’m a patriot. I love this country. I love America through thick and thin. Through Bill Clinton, George W. Bush, Barack Obama, Donald Trump, and now Joe Biden. My favorite holiday is Independence Day. And my favorite 1996 movie is Independence Day. And I respect the national pride that comes from hearing the Star Spangled Banner playing after America does something awesome like land on the moon or take the all around gold in women’s gymnastics.
What’s Your Point, Ben?
Thank you for asking. I was afraid I was getting a little long-winded. My point is this: As patriotic as I am, and as blessed as I have been to go to and participate in hundreds if not thousands of sporting events in my life, I have never understood why the National Anthem is played before sports.
I kind of—kind of—understand it at a huge, nationally televised event like the Super Bowl or Kentucky Derby or Olympics or whatever. But a regular season 2A soccer game in Winters, Texas? Why? Why is it necessary?
(By the way, the mascot of Winters High School is the Blizzards. One of my all time favorite random high school mascots. The Winters Blizzards).
Now, if a school district, professional league, amateur team, pro team, random person on the street, restaurant, bar, concert venue, jeweler, car wash, or literally any other entity wants to play the Anthem, then go for it. I have no problem with the Anthem being played. But I don’t think it should be compulsory, and I don’t think it adds (or subtracts) anything at all from the experience. If I went to a football game and they didn’t play the National Anthem, I probably wouldn’t even notice, but if someone pointed it out, my first thought would be, “interesting. Hey, if you’re going for a beer I’ll take one, too, please. Miller Lite if they have it.”
Honestly, can anyone tell me what it adds to the experience? The Anthem was first associated with sports at the 1918 World Series as a sign of solidarity with the USA’s efforts in the First World War. And Anthem playing didn’t become regular until during and after World War II. I’ve never understood it, but I have also never been offended by it, so in an admittedly rare move from someone as talkative as I am, I just didn’t mention it.
But the upshot is that if the NBA as a private entity wants to compel its teams to play the Anthem, they have every right to do just that. Mark Cuban can complain, and I get and even agree with his complaints, but the NBA is a private entity.
But What About Public Entities, Ben?
Another great question. Thank you. So public entities, that is, government entities, are a bit different because they must respect the First Amendment. The First Amendment, in a nutshell, says that the government cannot compel a private person or entity to speak or not speak in a certain way. This includes playing music, posting written things, wearing t-shirts with slogans, or having people physically speak. There are, of course, exceptions, with the most famous one being Oliver Wendell Holmes, Jr. stating that one cannot yell “fire” in a crowded theater. Schneck v. United States, 249 U.S. 47, 52 (1919).
Why am I providing a quick first-year-of-law-school Con Law lesson? Because in reaction to the Mavericks’ team statement above, Texas lieutenant governor Dan Patrick proposed a bill (which, in his defense has not yet been filed with the Texas Legislature) called the “Star Spangled Banner Act” that would compel that National Anthem to be played at “all events which receive public funding.” This would include situations like otherwise private Mavericks games because the stadium was partially subsidized via bond initiative.
This is textbook overbroad, vague, and ambiguous language. What events? The City of Dallas has been hosting Covid vaccine points, so do we have to start having that Whitney Houston version from the Super Bowl playing over the PA system every time someone gets a shot? Or how about parades? Or city council meetings? Or the opening of a library? Or every single day of public school? Or every single court proceeding in the entire State of Texas? Or what about businesses that took PPE loans when Covid really got bad last year? Do they have to play the Anthem on lunch breaks? What is an “event”? How is that defined? And when must the Anthem be played? And what if it’s something recurrent like a high school basketball tournament that may have several games happening at once? How many times do you have to play it? Do you see how asinine it is?
Plus, it’s compelled speech. That means if you have a totally private event that is held in a public venue wherein the private host was “donated” the space by public decree, that would still constitute receiving public funds. So do you need the Anthem played then? What is the penalty? If the penalty is punitive and criminal, then you really do have compelled speech. It’s simply not reasonable to compel anyone to say or not say a certain thing (which includes playing or not playing certain songs) on threat of fines or jail time. And sure, if it’s a truly public event like a city council meeting, then the government can do that. But if it’s really a private event that happened to take some public assistance? I don’t think so.
What About the Title of This Article, Ben?
To be perfectly candid, I had the idea for the title before I started typing, so you’ve kind of caught me in a bit of awkward un-creativity. I should have been weaving the metaphor in and out through the whole article. Oh, well. This provides a great opportunity for a wrap up.
So what do the National Anthem and Jimmy Crack Corn have in common? I don’t care about either one, really. I don’t mean that I don’t care about the Anthem or the ideas and principles behind it. But I damn sure don’t care if they quit playing it at sporting events. It contributes literally nothing to the entire experience, so why would it bother me (or anyone else) if it was removed? Make it part of the experience if you want it that badly. Draw names from a hat and pull a random seat number and make that person sing it. Start doing that and people would be pissed if that got taken away. “The Price is Right” meets “American Idol” meets professional sports. But for now, I simply don’t care. If it stays, great. If it goes, oh, well. But the important thing is that private entities should have a choice free from government oversight on whether to play it.
That said, if they start coming for “Take Me Out to the Ball Game,” we’re gonna have a problem.