Hate Speech

The First Amendment prohibits the President or Congress from taking away the NFL’s tax deduction because the league permits players to engage in political protest.

The President tweeted this morning, “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!”

Last month, Republican Congress Member Matt Gaetz said the same thing in a press release announcing his sponsorship of a bill to remove professional sports leagues’ tax exemption.  According to Gaetz, “[N]owhere in the Constitution does it say that Americans are required to subsidize disrespect for America.”

Both comments fail to acknowledge a fundamental constitutional limit on government action.  The very essence of the First Amendment’s right to speak is protection from government censorship, meaning penalties imposed because the government broadly, or a particular government official, disagrees with the idea expressed.  The prototype of speech most highly protected is speech critical of the government because citizens must hear and understand all points of view to form the opinions that allow them to participate meaningfully in our democracy.

The Constitution grants the President, and Congress, the power to do many, many things.  And many of these things make it more difficult for people to listen and to speak.  Taxes on paper and ink make books more expensive.  Tax deductions for charitable and religious organizations allow them to direct the money saved toward spreading their messages.  But purpose matters.   There is no question that Congress may change tax law to remove the NFL’s tax exemption, or that the President may publicly urge Congress to do so.  But Congress may not remove the tax exemption for the purpose of penalizing the NFL for tolerating its players’ political speech.

To be sure, proving the unconstitutional “purpose” of a large body like Congress is more difficult than proving the President’s unconstitutional purpose for an executive action through use of his own statements as evidence, as courts held with the second travel ban.  Nevertheless, these statements by public officials, combined with the largely “symbolic” effect of removing the limited tax exemption, provide a base of evidence to support a lawsuit, defended against with tax dollars, should Congress act soon to change a tax law that many people might well agree, as an economic or tax policy matter, makes no sense.