Compelling private sport speech

Abstract

The intermingling of sport and political speech has become increasingly poignant. Although basketball star Michael Jordan has now clarified that his famous statement that “Republicans buy sneakers, too” was made in jest when asked about why he did not make political statements, Michael Jordan was well within his rights to avoid the political spotlight and reserve his political and social contributions for more discreet settings. Things have changed since Jordan's playing days in the 1990s; many contemporary athletes promote their activism as part of their commercial identities. The rise in athlete activism has not, however, reduced athlete interest in being “like Mike” by not speaking. In fact, the opposite might be true, as athletes may have a stronger sense of the causes they desire to support, as well as how they are willing to assume the risks associated with social and political activism. Nevertheless, the teams and leagues that make up our sports industry are also developing activist, or at least social, identities and are within their rights to do so. Teams, leagues, and other sport or corporate entities are permitted to engage in corporate social activism (CSA) on causes that are important to them. This Article explores the underexamined world of compelled speech in the realm of private employers. The Article uses the context of private sports leagues to examine the ability of individuals to resist efforts by private employers to compel speech. Furthermore, we extended the scope of our investigation to include examination of compelled speech regulation in the multibillion‐dollar industry of collegiate sports. In fact, the heightened degree of institutional control that athletic programs exercise over the lives and careers of college students makes them particularly vulnerable to free speech compulsion that, in some cases, could violate the First Amendment. Our research culminates in the development of suggestions that were formulated based on a thorough survey of the relevant case law and literature on the subject of compelled speech.