Seattle Seahawks running back Marshawn Lynch has the right to remain silent via the First Amendment of the United States Constitution, which guarantees freedom of expression among a variety of fundamental protections. He exercised that right during the NFL season and got hit with a $50,000 fine, which is currently on hold provided that Lynch breaks his season-long vow of silence vis-a-vis the media.
Per The Seattle Times, the Cal product is actually facing a possible $100,000 fine should he refuse to talk to the media. In light of that revelation, it should come as no surprise that he's tersely toeing the company line.
But if Lynch wants to make real waves and shake up the NFL power structure in a meaningful way—instead of just trying to stick a finger in the eye of NFL Commissioner/Wizard of the Gridiron Roger Goodell—he should resume his tight-lipped posture.
Then, when the NFL follows through on its threat, he should sue for a violation of his right to freedom of expression, one of the most aggressively protected rights afforded by the Constitution.
Before all the legal sharps in the audience skip to the comment section to flame away with some derivation of "the NFL is a private entity, moron," bear with me.
It's true that these constitutional protections do not, per se, shield an individual from the conduct of a private party. But it's also true that they can become operative over a private party under the state action doctrine. That doctrine holds that a private party becomes a state actor, and thus open to charges of constitutional violations, when there is a sufficient nexus between the state and the challenged action.
The Supreme Court of the United States has looked at the issue numerous times, sometimes finding the nexus present, other times finding it to be lacking.
The good news for Lynch is that the one thing the Supremes have consistently ruled is that the question can only be answered "by sifting facts and weighing circumstances" in each case (Burton v. Wilmington Parking Authority, 365 U.S. 715, 722).
That essentially means there is no bright-line rule or dispositive set of conditions that must be met in order to embrace or reject the state action doctrine. Indeed, the Court said almost precisely that in a 2001 case, holding that "no one fact is a necessary condition for finding state action, nor is any set of circumstances sufficient, for there may be some countervailing reason against attributing activity to the government" (Brentwood Academy v. TSAA et al., 531 U.S. 288, 289).
That's crucial for Marshawn and his theoretical challenge because, let's be perfectly clear here, I'm not arguing Lynch would win the case.
On the contrary, it's probably a loser since many of the bases that were used to find state action in precedent cases are absent here. Neither state nor federal governments derives a direct benefit from requiring Lynch to speak, there is no managerial intertwining between state or federal governments and the NFL, neither state nor federal governments has coerced the NFL into requiring Lynch to speak, etc.
But there is a question regarding the symbiotic relationship between the state and federal governments on the one side and the NFL on the other.
In this piece for The Atlantic, Gregg Easterbrook—yeah, yeah, he's a pretentious, self-important windbag, but his facts are usually accurate—outlines how close that relationship is.
The NFL and its teams receive public funds to build their arenas. The games are then broadcast over public airwaves from these public buildings. There are also the various tax incentives each team gets, which are governmental subsidies any way you slice them. Whether I get a $25 million gift or avoid a $25 million obligation, the upshot is I have $25 million extra with which to work.
And then there's this messy business of the NFL being characterized as a non-profit organization by the Internal Revenue Code and free from taxation.
(Quick aside: Most profits are subject to taxes because they're attributed to individual teams or to the for-profit NFL Ventures, Inc., but there's still a good chunk of change that flies completely off the IRS' radar.)
Is the NFL a trade organization or an exclusive club masquerading as a trade organization? Are the millions the league saves in taxes legitimate or just another political boondoggle secured by the ugly political quid pro quo so common in our country? Why does the NFL have what amounts to a shell corporation in the first place if not for financial shenanigans?
Luckily, the debatable answers are beside the point for our purposes.
The point is the non-profit status and tax exemption exist for an entity that operates on public land, avails itself of public airwaves and enjoys numerous tax advantages afforded by state and federal governments. The Supreme Court has listed both use of public resources and public handouts as justifiable grounds for consideration during a state action examination.
A savvier legal mind than mine (basically, any licensed attorney) would be able to fashion the above set of facts into a more effective argument in support of a constitutional violation. A really savvy legal mind might even be able to build a persuasive argument, but he/she doesn't have to go that far.
Remember that each state action doctrine must be evaluated based on the totality of circumstances. In other words, Lynch needs only to show there is a possible nexus to get his case in the courtroom door. That's not a particularly high bar to clear.
Once in the door, he may win or lose, but getting his case heard—by both the courts and the public—is the key.
Look, I'm a San Francisco 49ers fan and a Stanford alumnus. The only way I could be more anti-Marshawn Lynch would be if I were also a diabetic defensive coordinator. But fair is fair and this situation ain't that.
It is patently absurd that the NFL can ride so hard on the public dime while simultaneously operating as if it were a normal private enterprise. That absurdity has to end and the first step is drawing as much attention as possible to the have-your-cake-and-eat-it-too farce currently enjoyed by the league.
The NFL tells its employees what to say, what not to say, when to say it, when not to say it, what to wear, what not to wear and then fines anyone who disobeys, all in the pursuit of every fraction of every penny it can possibly get its hands on. That's entirely appropriate for a private corporation, but you sacrifice that level of autonomy when you closely align yourself with a state or the federal government.
At least you're supposed to sacrifice it. The NFL has not.
A high-profile suit brought by a high-profile player would begin to bring the degree of scrutiny necessary to rectify the issue.
If there were another feasible option, I'd be all for it, but the other primary avenue of change is the legislative one. Sadly, our politicians are bought and paid for by special interests. There might be one spine and enough integrity to fill my little finger in the entirety of our political landscape. That world is governed by dollars and cents, not right and wrong.
Go to war with the almighty NFL when an election year is right around the corner (as it always is)? Not bloody likely.
That leaves public sentiment and judicial intervention as the only practical options.
Marshawn Lynch may have myriad reasons to avoid speaking with the media. Maybe he's got some sort of social anxiety disorder. Maybe he's painfully aware that most professional athletes are not prepared to speak publicly. Maybe he thinks he's too good to talk to the ink-stained (metaphorically speaking) masses.
I haven't a clue and it doesn't really matter since this isn't about Marshawn Lynch. It's about the abuses of the NFL power structure.
Marshawn could launch an important salvo in the fight to get the NFL off the public teat.
If he loses, he'll draw much-needed attention to the situation. If he actually wins? The NFL will be faced with a choice—either loosen the reins on its players or stop using taxpayer money to bankroll its lucrative business.
Guess which the NFL would choose.