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Texas Lt. Governor Dan Patrick's SB4 Is Unconstitutional

Here in Texas Dan Patrick, the Lieutenant Governor and Leader of the Senate, has a bill, SB4, that would require the National Anthem to be performed before any public sporting event that is in any way connected to taxpayer dollars. That would include all public schools, of course, but would even include private sporting venues if they received tax abatements, subsidies, or dedicated sales taxes.

Whatever you think of taxpayer funding of sporting venues (and I don’t think much of it), Patrick’s bill is blatantly unconstitutional in that it violates the First Amendment.

How? Because it is compelled political speech.

People are generally familiar, if wrong, about the First Amendment’s protection of political speech; i.e., that the government can’t stop you from engaging in political speech. Technically the First Amendment is about political speech, but over the years the courts have interpreted the First Amendment very broadly, in that almost any opinion is protected. What people are wrong about is they think the First Amendment is an absolute right, but none of our rights are absolute. They are all very important, but all of them have exceptions and limitations.

But the flip side of the First Amendment is that the government also cannot COMPEL you to engage in political speech. It can’t require you to say something you don’t want to say. That’s why it would be unconstitutional in the U.S. to require people to vote, or to require them to join a party or support a candidate. That would be compelled political speech.

Similarly, requiring private businesses such as sports teams or leagues to sing a particular patriotic song is clearly compelled political speech. There is no way it will withstand First Amendment scrutiny, if challenged.

Legislators take a vow to preserve, protect and defend the Constitution. In my view that should preclude them voting for legislation that is in clear violation of the Constitution, but I see my fellow conservatives doing it all the time when it suits their culture war agenda. And that’s a shame.

We criticize progressives for wanting to use the power of government to force their preferences on the private sector, but then we turn around and do the same thing ourselves. Shameful.

Progressives are the ones who are about end results rather than process. They are the ones who believe in “by any means necessary.” Conservatives are supposed to be about following the rules and abiding by the Constitution, regardless of whether it results in our preferred outcome or not. At least that’s how I always thought it was supposed to be.

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