Free Speech

First Amendment Likely Bars Arizona's Withdrawal of Tax Benefits to Nike Over Betsy Ross Sneaker Controversy

The Supreme Court has held that the government generally may not terminate contracts with contractors based on their constitutionally protected speech; the same likely applies to financial incentives..

|The Volokh Conspiracy |

Arizona Republic (Maria Polletta) reports:

Arizona Gov. Doug Ducey on Tuesday slammed Nike for canceling the release of a shoe featuring an early design of the American flag, saying it had "bowed to the current onslaught of political correctness and historical revisionism." … [T]he Republican leader vowed to withdraw financial incentives recently promised to the company in exchange for opening a manufacturing plant in Goodyear with some 500 full-time jobs.

Nike pulled the shoe, set to go on sale this week, after former NFL quarterback Colin Kaepernick told the company he and others found the version of the flag depicted on the shoe offensive, according to a Monday report from The Wall Street Journal. Nike said it did not want to "unintentionally offend and detract from the nation's patriotic holiday."

The design — often called the "Betsy Ross" flag, though it's not clear the 18th century upholsterer actually made it — has been appropriated by extremist groups such as the Ku Klux Klan and the "militia movement" in recent years.

But the First Amendment generally forbids the government from retaliating against government contractors based on the contractors' protected First Amendment activity (which would include either deciding to release a shoe with a particular flag design, or deciding not to release it); the Supreme Court so held in Board of Comm'rs v. Umbehr (1996). And while that case involved traditional payment-for-service contracting, the logic of the case would apply to financial incentives such as those involved in the Nike case. (Indeed, Umbehr relied on, among other cases, Speiser v. Randall (1959), which held this as to tax exemptions.)

Of course, the government can generally choose to terminate a contract (assuming the terms of the contract allow that) or not to renew it for a wide range of reasons. But it can't do that based on, say, the party's race or religion—or, the Court held in Umbehr and a companion case (O'Hare Truck Serv. v. City of Northlake (1996)) the party's First-Amendment protected speech.

The Court in Umbehr focused on speech-based decisions to cancel a terminable-at-will contract, or not to renew such a contract. But it sounds like the Nike matter likewise involves a decision to cancel an already arranged plan; and just as the First Amendment bar on the government firing employees based on their First Amendment activity also applies to refusals to hire (Rutan v. Republican Party of Illinois (1990)), so the First Amendment bar on terminating contracts based on First Amendment activity applies to refusals to contract.

For more, see my post about why it's unconstitutional for the City of Los Angeles to require that would-be contractors disclose their ties to the NRA.

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  1. Apparently, Kaepernick gets to not only set Nike product and business policy, but he gets to set Arizona government policy as well.

    It must be quite nice to be Kaepernick.

    1. No he doesn’t.

      Arguments may persuade you more if you learn to have the maturity and integrity not to dishonestly recharacterize them.

      1. How is Michael dishonestly recharacterizing them? What his comment says is EXACTLY what happened. It’s up to you to point out how that’s not the case.

        1. It’s dishonest because NIKE and Kap apparently have some sort of agreement that allows him to do this, and NIKE thinks it’s in their interest to have Kap as a brand ambassador; also the 1st Am, not Kap, is responsible for the rights that NIKE has.
          NIKE will regret this scenario, though.

          1. So the first commenter WAS right? Kaepernick, per the agreement you reference, DOES have control over Nike product and business policy.

            1. He has influence, not control. He doesn’t set policy. He certainly doesn’t set government policy.

              1. What does “set” mean exactly here?

                Final decision or the key decision?

                Once the a-hole decided it was racist, Nike was not going to go against their pet. Too dangerous.

                So set is accurate enough.

                1. Once the a-hole decided it was racist, Nike was not going to go against their pet

                  The tone-shift in that sentence could give you whiplash. Spite to condescension in 13 words!

              2. That makes for some strange “but-for” analysis.

            2. The first commenter said Kaepernick has control of Arizona government policy. It’s right there in the comment. Here is a quote, in case you missed it (emphasis added):

              Kaepernick gets to not only set Nike product and business policy, but he gets to set Arizona government policy as well.

        2. That being said:
          I disagree with the jurisprudence (as I recall I’m with Scalia, among others, on this) that says the government has fewer rights as a business partner than a private entity.
          The laws governing contract–not the 1st amendment–should apply.

          1. Be careful what you wish for, since this principle forbids NY from threatening banks with reputational damage because they serve the NRA or gun companies, and Chicago who wants to ban Chick-fil-A a license because of the owner’s loud mouth.

            Fyi by typing in Chick-fil-A, I will immediaty start seeing Chick-fil-A ads on other web sites. This all-encompassing panopticon os getting ridiculous.

            1. “by typing in Chick-fil-A, I will immediaty start seeing Chick-fil-A ads on other web sites.”

              I don’t think so. The only way I know of for that to happen is if Reason (or perhaps this particular commenting software) has sold search rights to one of the providers of that particular service. If you Google a term, google is absolutely going to start serving relevant ads. If you visit a website (and they have bought that service) you are absolutely going to start seeing their ads elsewhere. But I’ve never seen the capability you described, and I’ve shopped for it.

            2. Krayt: “Chicago who wants to ban Chick-fil-A a license”

              Didn’t know about that. Is Chicago trying to emulate San Antonio Texas, which refused to let Chick-fil-A operate in the San Antonio airport because of the company’s donations to the Salvation Army and the Fellowship of Christian Athletes?

    2. Nikes customers set its policies. And the AZ government can’t punish Nike for the expressive component of those policies.

    3. And nobody listens to you:(

      1. How many comments were under Michael’s original comment? Someone listens to him, including you.

        1. I think he’s mad Nike doesn’t listen to him.

  2. “Because Umbehr’s suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.”

    Nike, in this case cannot “rely on such a relationship”.

    “Nike plans to open a multimillion-dollar manufacturing plant on metro Phoenix’s west side after the Goodyear City Council unanimously signed off on an agreement Monday.”

    So, because there were only plans to open a manufacturing plant (i.e. its not already in operation), Umbehr doesnt apply.

    1. “withdraw financial incentives recently promised to the company”

      If promises were made, then yes there was a relationship. (Though how deep and binding a relationship depends on how firm those promises were. If they’ve been committed to paper, then the relationship is pretty strong.) The mere fact that the manufacturing plant is not already in operation is irrelevant.

      Consider what happens if we take your argument to its logical conclusion. The mayor of Podunk offers $5 gajillion in incentives to convince you to build your factory in his town. You even sign a contract to that effect. You spend your own money building the factory, hiring the workers, stocking the inventory. The day before you open your doors and begin operations, the mayor reneges on the contract. By the argument above, you have no recourse for the breach. I’m pretty sure that’s not the actual legal standard.

      1. So no thats not correct. In this case, the only thing that happened was negotiations. No contracts had been signed. So there was no legal relationship. There was only the effect of shopping at the local car dealership offering a rebate to buy.

        “No location lined up yet

        “It’s not clear where the plant will be.

        “The company is in the final stages of a real estate transaction,” city spokeswoman Tammy Vo said. “So nothing final yet on a location.”

        https://www.azcentral.com/story/news/local/southwest-valley/2019/07/01/nike-manufacturing-plant-may-bring-500-jobs-metro-phoenix-goodyear/1621166001/

        1. So, the government should just admit that it can’t withdraw the benefits…but if Nike can’t find a landowner willing to sell them the land…

        2. “So no thats not correct. In this case, the only thing that happened was negotiations. No contracts had been signed. So there was no legal relationship.”

          It’s like you’ve never even heard of promissory estoppel.

    2. They were already in real-estate dealings for it, apparently almost done. They started talks with the city in May; they just signed the agreement on Monday.

  3. “But the First Amendment generally forbids the government from retaliating against government contractors based on the contractors’ protected First Amendment activity. . . ”

    With the OBVIOUS exception when a government contractor company exercises their First Amendment right to boycott Israel.

    Then the government can penalize them all-to-hell.

    Did I get that right?

    1. No, you didn’t. The courts don’t agree that boycotts are an exercise of the First amendment.

      Mind, I don’t entirely agree with the courts about this, (I’d support a right to boycott, just not under the 1st amendment.) but that’s what the judiciary are saying: It isn’t an exception to the 1st amendment, because it isn’t “speachy” enough.

      I agree with Eugene’s reasoning here. We should all shun Nike over this, but once the government has entered into a contract with them, (Assuming they actually have, I haven’t looked into that.) they can’t wiggle out of it just because Nike does something obnoxious that’s this obviously speech. Even if it’s a contract they shouldn’t have entered into in the first place.

      Anyway, how oblivious was Ducey not to see, if not this exactly, something of this nature, coming from Nike? It isn’t exactly out of character for them.

      1. How is boycotting NOT free expression ? In many instances it is also political ?

        Why does one even need to address first amendment concerns ?
        Either there was a contract, or there wasn’t. If there was AZ is bound to it absent breach. Unless dropping the Bettsy Ross Sneaker or something similar is in the contract, AZ must honor the contract.

        As to Kaepernick, …
        How can these people manage to exist when everything offends them. Unfortunately I quit watching football a decade ago, or I would quit again over this kind of horse pucky.

        I had no idea that the KKK was using the Bettsy Ross flag.
        And I do not care.
        Members of the KKK drive cars – should we all quit driving ?
        And why are we so fixated on the what 5 members of the KKK still in existance, when Antifa is actually beating the crap out of people regularly ?

        1. “How can these people manage to exist when everything offends them.”

          And yet here you are being offended because someone else is offended.

          Hilarious!

          1. He didn’t say he was offended. He’s just speaking about the subject. Try again.

        2. How is boycotting SSM not free expression? Apparently rights vanish as soon as money changes hands, but on a random side of the transaction. You can’t decide not to hire blacks, but you can decide not to work for them, bakers have to bake SSM cakes, but straights don’t have to buy their cakes from gay bakers. I find it all very confusing, probably because I’m making the mistake of asking for a consistent principle, when the rule is actually, “What we can get away with right now.”

          “I had no idea that the KKK was using the Bettsy Ross flag.
          And I do not care.
          Members of the KKK drive cars – should we all quit driving ?
          And why are we so fixated on the what 5 members of the KKK still in existance, when Antifa is actually beating the crap out of people regularly ?”

          Apparently, anything the KKK do, or are even imagined to do, (Like the OK guesture.) becomes exclusively associated with them.

          Of course, we know why the tiny remnant of the KKK, kept alive by the money they get from the DNC in return for showing up in costume at conservative events, matter, and the Antifa don’t: Because it’s the left deciding who matters, they control most of the media.

          1. “Apparently rights vanish as soon as money changes hands. . . .”

            Nope!

            The problem was money DID NOT change hands because one side refused the transaction (which also negates your “random side of the transaction” statement).

            1. You can’t refuse to sell to X, but you can refuse to buy from X.
              Unless you’re selling your own labor, in which case you can refuse to sell, but they can’t refuse to buy.
              Unless you’re a single proprietorship, in which case it goes back to not being able to refuse to sell, but they can refuse to buy.

              There’s no system to it, except “What we can get away with at this instant”, which is why the reach of public accommodation law keeps growing like a cancer.

              1. Yeah – a boycott is about buying, not about selling. It’s a pretty easy distinction to make.

                And selling labor is also pretty easy to distinguish.

                None of the distinctions you hold up as arbitrary actually are arbitrary.

                1. Then what’s the rule, Sarcastro? Is there any rhyme or reason to this that someone can see clearly?

                  1. A rule that deals with labor and buying and selling with respect to the Constitution?

                    Each has it’s own jurisprudence because each has different equities from the other.

                2. Yeah – a boycott is about buying, not about selling. It’s a pretty easy distinction to make.

                  I don’t think there’s any basis for such a claim.

                  If I decide I don’t want to support the caging of children and so I decide I won’t sell goods or services to ICE or its contractors, that’s just as much a boycott as me deciding I won’t buy from Nike because they use sweatshop labor (or whatever). Either side can boycott.

                  1. DMN, perusing Internet dictionaries, it appears you are correct semantically at least.

                    Legally, thanks to public accommodations statutes, there remains a distinction. But I was wrong about what boycott means.

              2. You can’t refuse to sell to X, but you can refuse to buy from X

                That’s true because of statute, not the Constitution. Presumably, the Constitution permits the state to proscribe not patronizing a vendor because of the vendor’s race. It’s just no state has chosen to do so.

          2. Boycotting goes beyond speech or expression by definition into economic harm to twist the arm of the other guy.

            You have an argument via freedom of association, but not of expression here. But that is a can of worms as it voids other anti-discrimination laws if held as the highest of principles.

            Be glad it was not an enumerated right, I suppose.

        3. The argument that is made is that a boycott itself is conduct not speech. And the conduct itself, not buying from somewhere, doesn’t actually express disapproval or even a boycott as many people don’t buy from many places for many reasons. It only is know through the actual speech that MAY accompany it (e.g. literally saying you are boycotting). But the courts have held that conduct that isn’t itself expressive isn’t protected even if accompanied by speech that makes it clear.

          I don’t know if that is the right answer or not legally, but that is the interpretation.

        4. Unfortunately I quit watching football a decade ago, or I would quit again over this kind of horse pucky.

          You would quit watching football… because of something a guy who hasn’t played football in 2 1/2 years did?

        5. “How is boycotting NOT free expression ?”

          It is, but if courts admit that it is, then if they wanted to be consistent they would have to admit that laws against refusing to do business with other classes of people would violate the first amendment as well. But the way the anti-BSD lawsuits are playing out, courts (and the public) are happy to be inconsistent.

        6. How can these people manage to exist when everything offends them. Unfortunately I quit watching football a decade ago, or I would quit again over this kind of horse pucky.

          Pot, meet kettle.

          Looks like you and your pals are pretty strongly offended by Kaepernick’s exercise of his rights. Just kneeling before the game set the right off like a string of firecrackers.

        7. jbsay: “I had no idea that the KKK was using the Bettsy Ross flag.”

          You still have no idea that they are. The link Volokh included went to an article where the NAACP /claimed/ that had happened, but the only evidence was a group of high school students at a football game who brought both a Trump banner and a Betsy Ross flag. A pretty weak link, I think.

    2. No, you did not get that right. Advocating a country change its policy is protected. Boycotting, which goes beyond speech deliberately and by definition, into the territory of economic arm twisting, is not, and has been added by government to anti-discrimination reason lists.

  4. As usual, conservatives who defended the Confederate flag against the onslaught from the left and the weak kneed “right” have been vindicated. We said that it wasn’t about the Confederate flag per se, but about ANY symbol of America that represented its historic tradition. I said that since America was irredeemably guilty of racial sins until 1865, any symbol of America during that time period would be under attack too, and I was right.

    The left’s goal is to destroy the West and to replace it with a Marxist one-world government that they control. Pay attention or pay the price.

    1. The Confederate flag does not represent America’s historic tradition so your premise is entirely wrong.

      Pay attention and try again.

      1. You are the one who is not paying attention.
        The confederate flag is not the only target of these idiots.

        Prior to Kaepernick making an issue of it, how many people knew that the KKK was using the Betsy Ross Flag ?
        Do we even know that they actually are in some consequential way ?
        And even if so why would we care ?
        Are we going to eliminate all references to the statue of liberty, if some offensive group starts using it ?
        As things are – it does not even require an actually offensive group.

        Left Logic:
        The institute for Justice fights for property rights, property is racist, the IJ is racist, therefor ban any symbol that IF might use.

        That is the point RWH is making – and he is right about that.

        1. Brett,

          Would you do me a favor and explain what jbsay is babbling about?

          Thanks.

          1. He’s arguing there’s a slippery slope and that people are overreacting to charges of racism.

          2. Kind of hard to do without just repeating what he said, he was clear enough.

            The target of these iconoclastic efforts isn’t just things associated with the Confederacy, or KKK, or what have you. Basically nobody thinks of the Betsy Ross flag as a symbol of racism.

            So humoring the iconoclasts is a bad idea, you’re just establishing that they can destroy anything they feel like, and there’s no telling what they’ll feel like destroying next.

            1. Thanks!

              I dislike slippery slopes too.

              The Confederate flag is not a part of a slippery slope so I’m not sure why the two things have be conflated.

              1. The only thing they have in common is that the iconoclasts went after the Confederate flag first.

                You’re familiar with the idea that you don’t wait until an invading army enters your territory before fighting it, you fight it while it’s still on the other guy’s territory, so any ground you lose is somebody else’s ground?

                Same principle here: You say “No!” to the iconoclasts while they’re still going after stuff you don’t much care about, to establish the principle before it reaches the point where you’re fighting about things that really matter to you.

                You fight for freedom of speech for the hateful, because if THEY have freedom of speech, your own is safer than if the principle of freedom of speech is already breached, and we’re only fighting over whose speech is going to be unfree.

                1. On the Confederate flag, how about considering that it opponents might be right. They are, you know.

                  Maybe that would establish some credibility on other issues. As long as you’re cheering the Confederacy it’s not going to be easy to attract allies.

                  1. Right about what? That liberals hate America and want to replace it with a third-world Marxist shithole?

                  2. I don’t freaking care about whether its opponents are right. Maybe the left believes “Error has no rights”, but I don’t.

                    And I don’t care to “establish some credibility” with people who are trying to limit freedom of speech to just speech they approve of. Even setting aside the principle of the thing, it would be tactically stupid to do.

                    1. So you agree, then, that the 1A prohibits Arizona from punishing Nike.

                    2. Look up the thread. Way up the thread.

                      “I agree with Eugene’s reasoning here. We should all shun Nike over this, but once the government has entered into a contract with them, (Assuming they actually have, I haven’t looked into that.) they can’t wiggle out of it just because Nike does something obnoxious that’s this obviously speech. Even if it’s a contract they shouldn’t have entered into in the first place.”

                    3. I like it when we agree.

                    4. BS, Brett. Error has all kinds of rights. You want to proclaim yourself a racist asshole by hanging a confederate flag, go ahead. No one will stop you.

                      But it’s different when government or public institutions celebrate the traitors and segregationists it symbolizes. They shouldn’t do that.

                2. “The only thing they have in common is that the iconoclasts went after the Confederate flag first.”

                  Yeah…no.

                  It’s racism and ignorance that we’re addressing: the Confederate flag is just a handy way to identify racists and ignorant people.

                  BTW, concerning your freedom of speech note, I fully and absolutely support everyone’s right to display flag a Confederate flag.

                3. You’re familiar with the idea that you don’t wait until an invading army enters your territory before fighting it, you fight it while it’s still on the other guy’s territory, so any ground you lose is somebody else’s ground?

                  Uh, if they’re on their own territory, they’re not an invading army; you are.

                  1. Yeah, I guess you’re not familiar with that concept.

                    1. What makes Nike, or a public park, your territory?

                      Aren’t the calls to boycott Nike over this attacking Nike’s freedom of speech just as much as those who object to the sneakers?

                      Oh, and isn’t it Ducey, the Republican governor of Arizona, who is trying to use the force of government to restrict Nike’s speech?

                      Really. You guys are amazingly blind. Ducey does this, or tries, and you criticize Kaeprnick over the First Amendment?

                      Get a mirror.

                4. “The only thing they have in common is that the iconoclasts went after the Confederate flag first.”

                  The people who put the Confederate flag up in the first place were also iconoclasts.

              2. apedad – do you think Kaepernick would have reacted differently if the current flag were put on those sneakers? Explain why or why not.

              3. “I dislike slippery slopes too.

                The Confederate flag is not a part of a slippery slope so I’m not sure why the two things have be conflated.”

                I don’t think you really understand the point of “slippery slopes”. Slippery slopes always start with something that seems reasonable, but once you start down them it’s hard to stop.

                So the Confederate flag absolutely IS part of a slippery slope. It’s just near the top, rather than the bottom.

                1. “Slippery slopes always start with something that seems reasonable…”

                  This can’t be true, or else everything reasonable would be objectionable. Slippery slopes start with something objectionable but seemingly harmless.

              4. “First they came for the Confederate flag, but I was not a Southern racist fantasizing about the good old slavery anteblum days during which I imagined I lived on a plantation but almost certainly would not have, so I said nothing.”

                1. WTF are you people talking about?

                  Fly all the confederate flags you want. Just don’t make governments fly them. Nobody is infringing your right to do that.

                  “First they came for the Confederate flag.” That’s ridiculous. An effort to push confederate symbols – flags, monuments, whatever – out of state flags and the like is an expression of well-justified revulsion at what I stands for. It’s not the start of some totalitarian crackdown.

                  Can you seriously not accept how odious a symbol it is?

                  1. No more odious than the pride flag. The pride flag is much more offensive, as it symbolizes a deviant man putting his schlong in another man’s tuchis.

                    1. Which, in your diseased mind, is way worse than enslaving other human beings.

                      Yeah. We understand, RWH.

            2. Yes, exactly. I don’t particularly care for the Confederate flag, but I knew it wouldn’t stop there. Just like I know that if the Democrats get their 10 round magazine limit, they will be back demanding 5 next shooting.

              1. You love the damn confederacy. Stop pretending otherwise.

                1. No. I don’t.

            3. First they came for the Betsy Ross flag,
              and I said nothing, because, well it’s old and all.
              Then they came for the Volokh conspiracy,
              and I said nothing….

      2. It certainly was part of the South’s tradition.

        1. During a time they claimed to be no longer part of the Union.

          There is a big difference between confederate symbols and the Betsy Ross flag. The entire purpose of the Confederacy was to continue enslaving people. It isn’t a recently adopted symbol of racism, it was a symbol of racism from the start.

          I fully support eradicating confederate symbols. But this notion that the Betsy Ross flag is a symbol of oppression and slavery is just dumb and cowing to it dangerous.

          1. No, I’m talking about the period from 1900 on when the South adopted it as a symbol of their heritage to honor their ancestors.

            In any case, they believed that they could enslave Africans as they were mentally inferior to us. Contrary to what the modern left claims, Africans ARE mentally inferior. An acknowledgment of this point would go a long way to restoring some semblance of sanity.

            1. RestoreWesternHegemony,

              Why should we assume that you are white or male? It is clear that you are either: a sad afraid incel that is obsessed with anal sex or a characture/satire.

              1. He has some valid points, and your ad-homs don’t address those points in any way. Go away. The adults are talking.

                1. Valid points? Really. Which ones? Only white, male, landowners should vote? Only white men are capable of governing without bias?

                  If you ventured into internet comments for sanity, intellectual debate, or a general sense of kindness, it is you who must venture away while the adults are talking.

                  1. I just re-read his comment. It had nothing to do with landowners, or voting, for that matter. So maybe you ought to stop listening to dog whistles? Remember, if you hear one, the dog is you.

                    1. I am confident that RestoreWesternHegemony has explicitly stated that he believes only white men should be able to vote. (I don’t remember what, if anything, he’s said about restricting the franchise to property owners.) If that’s not what he believes, I’m sure he’ll set the record straight.

                      And he certainly seems to talk about anal sex a lot for someone who isn’t obsessed with it.

            2. No racism there. Nosiree.

              “Heritage.” Slavery by another name.

              Actually, the flag came into widespread use in the 1950’s and 60’s as a symbol of segregation and racism.

          2. I fully support eradicating confederate symbols. But this notion that the Betsy Ross flag is a symbol of oppression and slavery is just dumb and cowing to it dangerous.

            I think the idea that pre-1860s flags stand for slavery is silly, but Nike isn’t being dangerous, they’re being risk averse. Such is capitalism.

            1. They’re not being risk averse, they’re virtue signaling. It isn’t the same thing.

              It’s risk averse to refuse to sell something that will piss off a significant fraction of your customers.

              It’s virtue signaling to refuse to sell something that won’t bother your customers, just because it will bother some other group whose opinions matter to you.

              Very few Nike customers would have been offended by the Betsy Ross shoes, but the people who would be offended are the people Nike’s management values the opinions of, more than they value actual sales numbers.

              1. I think Nike knows its customer base better than you. I don’t think a bunch of geriatric white people were at risk of buying heaps of nikes. The people who buy nikes, buy Kaepernick.

                1. Or, maybe they’re getting bad information based on what the Twitter and internet mobs are telling them? Nike doesn’t easily disclose their financial data, so it’s hard to tell if they’re making the sensible decisions, or listening to internet SJW’s like you.

                  1. Zounds! I guess you’d better be making their decisions for them. Preferably with the power of the state behind you.

                  2. Nike is a publicly traded company and is required to release its financials to shareholders annually. They’ve been enjoying about 4-7% annual revenue growth for about a decade. They’ve made a bet about their customers, and you disagree. I doubt you and Brett Bellmore know more about Nike’s customers than Nike does. But Nike could be wrong.

                    By the way, how many Nike products do you own?

                2. NToJ, you are surprisingly off about the geriatric white people. I do photography, sometimes street photography. At one venue I like, folks walk for exercise along a walk at the top of a sea wall—it’s like a boardwalk at the beach. At that location, an astonishing percentage of geriatric white people do their walking with ear buds on their heads, and Nikes on their feet. In the geriatric market, at least at that location, Nike is beating the other brands combined.

                  Not contesting your general point. Just noting a curiosity. It makes for some striking photographs.

                  1. I thought it was a federal law that old white people (old white men, at least) were required to wear blindingly white New Balance sneakers…?

                  2. I will trust the data over your anecdote.

            2. A risk averse company would not have Colin Kaepernick as a spokesman in the first place.

          3. mse326: “During a time they claimed to be no longer part of the Union.”

            Ah, but Lincoln said they /were/ still part of the Union. If he was right (and he was) the battle flag was a symbol of a violent, criminal conspiracy to destroy the union. Not so with the Betsy Ross flag, which was a symbol of the union.

            I’d boycott Nike, but I buy my shoes based on price and how comfortable they are. I’d boycott Kaepernick, but the NFL already has (not officially, but yes, it has).

        2. You and Bellmore are trying to have it both ways. You claim not to care about the Confederate flag, but are willing to fight like tigers to preserve it, and the monuments and whatnot, all based on some silly slippery slope arguments.

          Forget it. It’s symbol of treason, slavery, racism, segregation. Now you, unlike Brett maybe, seem to see no problem with those things. Those with a conscience do.

          1. Yes, we’re willing to fight like tigers, because we know it won’t (and hasn’t) ended there. Should we take down the Washington Monument? If not, why not? He owned SLAVES! And to make matters worse, he didn’t believe that your deviant friends should be able to cut their schlongs off and be legally treated as women.

            1. “Should we take down the Washington Monument?”

              Why would you care? It’s pretty apparent you hate America.

          2. Stop responding to him. It’s pointless.

          3. Yeah, it’s the old Voltaire quote. Like I said upthread, YOU might believe error has no rights, but I don’t. I believe everybody has rights, even people I disagree with.

            Nor do I feel like humoring the lie that everybody means the same thing by showing a Confederate flag.

            And I certainly don’t feel like handing my ideological enemies the power to declare what can and can’t be said in polite society.

            1. Yeah, it’s the old Voltaire quote. Like I said upthread, YOU might believe error has no rights, but I don’t. I believe everybody has rights, even people I disagree with.

              Nice try, Brett, but the only rights at issue here are Nike’s, that Arizona is infringing on.

              Nor do I feel like humoring the lie that everybody means the same thing by showing a Confederate flag.

              Some people mean they hate blacks, while others mean they really really hate blacks. And some just think that blacks are genetically inferior while claiming they don’t hate blacks.

              1. “Some people mean they hate blacks, while others mean they really really hate blacks.”

                I believe a lot of people, by showing a Confederate flag, just mean “F you!”. And I can understand that sentiment, after reading this thread.

                “And some just think that blacks are genetically inferior while claiming they don’t hate blacks.”

                Technically, genetic fitness can only be relative to a particular environment, so it’s kind of nonsensical to claim any group is “genetically inferior” without specifying the context. And, in any case, such a claim could only be true on a statistical basis, given that the ‘racial groups’ largely overlap.

                1. “I believe a lot of people, by showing a Confederate flag, just mean “F you!”.”

                  Yes, “F you!” to people who think the south was wrong and slavery is evil. We all hear them.

                  1. No, F you to YOU. Specifically you. Millions of people drive around in trucks with Confederate flags on them with you specifically in mind.

                    I don’t know how you fail to collapse under the weight of all that hatred.

                    I’m joking, but certainly F you to the sort of person you are.

                    1. It’s a completely bad faith argument on your part, Brett. You would never try to claim that people walking around with swastikas aren’t anti-semites but “really” are just saying “Fuck you” to liberals or the establishment or whatever. Don’t make the same bullshit claim about the confederate flag, either.

                      There are lots of ways to say “Fuck you” without a confederate flag. (Like, e.g., “Fuck you.”) The only ones who choose the confederate flag as their method are racists.

              2. “Some people mean they hate blacks, while others mean they really really hate blacks.”

                The Dukes of Hazzard hated blacks? Lots of people flew the Confederate flag for reasons totally unrelated to hating blacks. Of course, lots of people also flew the Confederate flag for the reasons you say, and blacks quite understandably didn’t want to have to figure out which meaning a particular individual intended.

                1. Lots of people flew the Confederate flag for reasons totally unrelated to hating blacks.

                  Lots? 4 or 5?

                  I guess there may have been some people who were just stupid and ignorant.

                  1. “Lots? 4 or 5?”

                    Well, I personally knew that many.

                    “I guess there may have been some people who were just stupid and ignorant.”

                    Well, maybe. They voted for McGovern and Hillary. OTOH, they had careers as engineers, professors, and so on.

                    I grew up in the south, because I was an Army brat and that’s where the bases are. People there are really into the whole Charlie Daniels/front porch/sippin bourbon/catfish/tin roof in the rain thing. It’s not my thing – I associate the south with humidity and chiggers, and think tin roofs in the rain are unpleasantly noisy. I moved away after college, but I still have friends there, and your stereotype of them is in error.

                2. “Lots of people flew the Confederate flag for reasons totally unrelated to hating blacks.”

                  It is telling that your first instinct was to hold up two fictional characters to support this theory.

              3. David Nieporent: “the only rights at issue here are Nike’s, that Arizona is infringing on.”

                Well, we don’t actually know that. (1) We don’t know (though some people do) if there is a legal contract in effect. (2) If there is, we don’t know what reasons it includes that would allow the thing to be cancelled by one or the other party. (3) And we don’t know if the guv knows perfectly well that Nike has a contract that will hold up in court, but he wants to make a grand political statement without actually having to /do/ anything.

                1. OK, POBYH.

                  I’ll take #3, except for the part about what the governor knows. How much money you got?

            2. Oh stop, Brett.

              You’re being stupid and Brettish, unwilling to give up when you are obviously mistaken.

              As I said before, no one is stopping you from flying the confederate flag or painting it on your car.

              So give up the free speech, Voltaire, etc. BS. It makes no sense.

              1. The only one being stupid is you.

  5. The first Amendment does NOT ban boycotting an anit-American company!

    1. It does ban governments breaking contacts when that implicates the contractors 1A rights, though.

      1. Freedom of assiciation is not a First Amendment right, nor are economic activities.

        I remember a case where pots and pans tupperware-style parties were banned on campus (and hence ridiculously expensive pan set sales sold to ignorant students were invalid. The scammers claimed the sales were “inextricably intertwined” with protected speech about (ironically) financial savings.

        The Supreme Court said that was nonsense. It is nonsense here, too.

        1. Freedom of assiciation is not a First Amendment right,

          So Citizens United was wrongly decided?

  6. Nike’s behavior here is a business decision to pull a product because a portion of their customer base said they objected to it. I don’t think Arizona should be advertising Nike this way, but how is this different from any other business decision?

    1. We’re tired of corporations giving in to the left on EVERYTHING, simply because they’re loud and obnoxious.

      1. We’re tired…so lets screw with Constitutional rights?

        I do like how you’ve taken to speaking for real Americans when it’s apparent not many are with you on much of anything.

        1. WTF are you talking about? I’m not talking about Arizona’s action.

        2. “so lets screw with Constitutional rights?”

          Conservatives are only reacting to your side’s lead.

          What do you expect? A free hand.

    2. O’HARE TRUCK SERVICE, INC., et al.
      v.
      CITY OF NORTHLAKE et al.

      “Government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question. Elrod v. Burns, 427 U. S. 347 (1976); Branti v. Finkel, 445 U. S. 507 (1980). We must decide whether the protections of Elrod and Branti extend to an independent contractor, who, in retaliation for refusing to comply with demands for political support, has a government contract terminated or is removed from an official list of contractors authorized to perform public services. Although the government has broad discretion in formulating its contracting policies, we hold that the protections of Elrod and Branti extend to an instance like the one before us, where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance.”

      This is all predicated on the 1A.

  7. When groups adopt symbols, then in the pubic view the symbols get endowed with characteristics of the groups—endowed willy-nilly, and not necessarily according to the groups’ preferences—sometimes according to opponents’ preferences. The instance discussed here is an example of the latter.

    It is hard to see what in that there is to be for or against. It is just what happens. It is foolish to insist that should not happen. Controlling it is not within the legitimate power of government, and objecting to it otherwise leads to futility and contradictions, thus:

    Basically nobody thinks of the Betsy Ross flag as a symbol of racism.

    A statement like that takes you to a place from which no route back toward rational discourse can depart.

    1. A statement like that takes you to a place from which no route back toward rational discourse can depart.

      Jesus. This is the type of internet comment that drives me nuts.

      Allow me to say it: the Betsy Ross flag is NOT a symbol of racism. Kaepernick is an idiot for believing that, as is anyone else. The flag represented the 13 original states. That’s it.

      1. I agree. It is total bullshit to attribute the actions of bigots (e.g. Klan) using the flag as the actual meaning of the flag. In all actuality, it gives power and credence to the white power folks since their conduct is actual changing commercial behaviors of the woke folk.

        I am a total lefty, but I am pissed off I cannot use an OK sign without people thinking I am a Nazi. What next, a thumbs up sign?

        1. Are you totally ignorant? We were talking about the 13 star flag, NOT the confederate flag. Get your knee back into stillness, and re-read the thread.

      2. “Allow me to say it: the Betsy Ross flag is NOT a symbol of racism.”

        SO FUCKING EDGY. MAN YOU SAID IT WE WERE ALL THINKING IT BUT YOU JUST CAME OUT AND SAID IT. HOW DO YOU FIT YOUR MASSIVE BALLS IN YOUR SHORTS?

        1. SO FUCKING EDGY

          Says the guy who used caps.

          Got an actual response to what I said, or are you just another lefty without an actual argument?

    2. “A statement like that takes you to a place from which no route back toward rational discourse can depart.”

      Why don’t you take a long walk off a short pier?

      I’m not giving you the right to declare what other people mean by flags or hand gestures, or what have you, and exile from polite society anybody who doesn’t humor you by agreeing with you. Just not going to do it.

      You’re not the What Symbols Mean Czar, and I’m not pretending you are.

      1. I’m not giving you the right to declare what other people mean by flags or hand gestures, or what have you, and exile from polite society anybody who doesn’t humor you by agreeing with you. Just not going to do it.

        Brett, see what I meant? Your only recourse is to back off the point I italicized to open my previous comment, or stay irrational—which is what you have decided to do.

        You have no power to withhold from anyone some imaginary right. You are not dealing with a right controlled by you. You are dealing with a power exercised by others—the power to declare what you mean, and to do so on the basis of their own assessments of which outcomes you advocate, based on their own estimates of the likely effects of your advocacy on their own experience.

        Society simply is not willing to judge anyone’s advocacy based solely on what that person says is in his heart. If, for instance, your heart-felt advocacy for what you take to be the good is perceived by others as tending toward a racist experience for them, you have neither a right nor a power to make them say otherwise.

        If society decides your persistence in that advocacy actually is racist, you are of course free to persist in that advocacy, but without any assurance you will not suffer, “exile from polite society.” Given that, suppose what you say is absolutely true. What do you think will happen if you re-assert it constantly?

      2. I’m not giving you the right to declare what other people mean by flags or hand gestures, or what have you,

        But everyone has the right to interpret the meaning of those things by reference to their history.

        If I wave a flag with a hammer and sickle it’s perfectly reasonable for you to interpret it as an expression of support for the USSR, no matter how much I protest that it’s just showing respect for workers and farmers. In fact, you would certainly do just that, and you would be well justified.

        So STFU.

    3. Hitler and the Nazis invented Autobahns, which we know as controlled access freeways and used them as a symbol of their advancing nation.

      Please refrain from driving on a freeway immediately. You don’t want to use a Nazi symbol.

      1. So far as I can tell, no one here is defending the base assertion that the Betsy Ross flag is a symbol of slavery. But it does make for a very tempting strawman, it seems.

        1. Sarcastro: “no one here is defending the base assertion that the Betsy Ross flag is a symbol of slavery.”

          Defending? How about mocking? Ross was a Quaker. The Quakers were abolitionists who got slavery abolished (over time, but the the law predated the Constitution) in Pennsylvania before we were even a nation. One should — I think /deny/ the assertion that the BR flag was ever a symbol of slavery.

    4. Symbols come and go and their meaning evolves over time. Trademark law, which I practice, has an interesting application: trademarks can become generic over time. Asprin is a famous example, once a brand name, the public appropriated it as the generic name for the drug in the late 19th century.

      The swaztika was once a symbol used by certain Hindu religions. Today it is widely understood to have a sinister meaning, as it is connected with a particular nasty ideology.

      Perhaps some Klansmen have adopted the Betsy Ross flag as their symbol. The fact is, 99% of people who see that flag do not associate it in any way with the Klan (they way most people would, say, a white hood and robe.)

      So the notion that we have to dissociate ourselves from the Betsy Ross flag is absurd, and one more example of kowtowing to self-appointed political correctness masters.

      1. 2 of the 5 giant flags at Obama’s second inauguration were the 13 star ones. Way back in 2012.

        Strange that white supremacists had such power in his inauguration committee.

  8. The Governor made a political statement. Being a politician after all.

    He is 55, probably has presidential ambitions. A GOP politician [unlike a Dem] can’t be hurt by standing up for the flag.

    If Nike sues and the state loses, he still made his point. It might even be stronger, activist judges etc.

  9. This case, is, of course, identical to the Chick-fil-a case in Texas, where the government wanted to stop them from operating at an airport because of disapproval of their perceived views.

    How many people have consistent views on both situations?

    1. Consistency is for fools these days. Its a land of wolves now.

      “He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That’s the American way,”

      1. If you don’t have any principles, what’s the point of winning?

        1. Ask the left, they have waged a culture war for 50 years.

          Winning is a principle.

          1. All tribalism and no philosophy makes for an unbalanced and sad individual.

            1. Shrug. I am just honest.

              Most people are tribal, they often like to think otherwise.

              1. ‘s why I didn’t say not tribalism. But ignoring any attempts to not be a hypocrite doesn’t make you honest, it makes you a tool.

            2. Sarcastr0, I wish you had urged experience instead of philosophy. A lot of tribalism is almost pure philosophy.

              1. Not how I’m defining it. Bob’s ignoring even the ostensible principles of his tribes philosophy in order to urge his tribe’s victory.

          2. Winning is a principle.

            It’s literally not.

    2. I think I do.
      The government-as-business-partner should have the same rights as any other business.

      1. Smooth, that is a point I had not considered, and maybe should. I have long advocated that government-as-university should enjoy the same powers as any other university. What do you think of that?

    3. Here’s a link for people to check:

      https://reason.com/2019/03/26/san-antonio-violates-chick-fil-as-first/#comments.

      It was mostly about whether the Salvation Army is anti-gay. My fault, it looks like.

      But it does look like I was consistent! Yay!
      As was Smooth, though on the opposite side.
      Also features a strong showing from the always amusing accusations of a Liberal Conspiracy.

    4. No, it is not at all like the ChikFilA case. Arizona is not trying to stop Nike from operating there, they simply aren’t going to incentivize Nike.

      1. So you’re saying that there’s a pretty big difference between a mandate and a tax?

        1. Let me check with Justice Roberts on that.

  10. The more basic problem here is that the State of Arizona (and some local govts.) have to give special tax and regulatory “breaks” to attract business. So that means that the local small and medium sized business have to put up with burdens that Nike does not. These deals are almost always bad deals economically.

    Here is a thought. Lower regulation and taxes for all, and create an attractive business environment for all.

  11. Fortunately, I have the right to decide that Nike products do not suit me, so I won’t buy then.

    So far.

    1. Unless you’re an Arizona taxpayer, because then you will be forced to financially support hate speech. Otherwise you’re a bigot, or something.

  12. Keep in mind the modern objections to this flag were based on claims the flag reminded the viewer of such bad things, and that the beliefs of the flag holder were irrelevant. Even if noble (for the sake of argument) just engendering a negative response in some people for unrelated reasons was argued a suffiient reason you should stop.

    Now having that victory, the rhetoric shifts and any flag holder becomes irredeemably evil.

    The Betsy Ross flag is now at the former stage — whatever noble things people feel for it, 20th century Nazis have adopted it, so you should feel bad and stop using it.

    Next stop, choo choo! Any Betsy Ross flag people are defined as iredeemably evil.

    Choo choo!

    Next stop after that, property right defense is irredeemably evil, so…

    1. This comment was dissociated from its parent an was referring to the confederate flag and “what about Dukes of Hazzard?”

    2. So if neo-NAZIs decide to start using the Israeli flag as one of their symbols, that will be justification for accusing anyone wearing a Star of David of being a neo-NAZI. What a clever way for an organization to stigmatize an opponent’s symbols.
      And what about trolls who create fake accusations that a symbols is used by neo-NAZIs? If a large number of people believe those accusations, is that a reason for banning use of those symbols?

      1. Lefties already consider Israel to be a Nazi state, so no evolution of views is required there.

        Now, if 4Chan were to spread the word that the gay rainbow flag was being used by Nazis and white supremacists, that would be interesting to watch.

        1. 4Chan?
          That’ll own the libs!

  13. When is a decision to no longer sell a particular sneaker “speech”?

    What if Nike issued a statement that Israel is a human rights abuser and it is thus joining the BDS movement, could Arizona revoke financial benefits?

  14. I Callahan
    July.3.2019 at 10:36 am
    apedad – do you think Kaepernick would have reacted differently if the current flag were put on those sneakers? Explain why or why not.

    Don’t know but first, he isn’t (and never was) demonstrating against the U.S., the Flag, the National Anthem, etc.

    He was using the very public and widely broadcast opportunity to make his position known about what he perceives to be racial oppression and inequality.

    So based on your scenario….

    1. He again uses the opportunity to publicize his opinions.
    2. He doesn’t.

    I’d guess 1. since he would, again, have the opportunity to publicize his positions.

    Not like us schmoes who, only by Prof. Volokh’s good graces, can make our opinions know here.

  15. Kaepernick is a fool. It has been popular in New England for ages. We have flown this flag for the past 20 years on July 4. We’ll be sure to fly it again tomorrow.

  16. If a company withdraws a product out of fear of loss of business, is that really considered First Amendment activity on part of the company?

    Even if the product itself is considered expressive, and even if the loss of business might occur because some people find that expressiveness offensive, should we be interpreting that as an exercise of the First Amendment by the company? It seems to me more the case that the company is just wanting to maximize the benefit to shareholders.

  17. Governor Ducey was a fool for stating that he was going to try and have the state withdraw the tax benefits offered to Nike because of the company’s actions regarding the flag on the sneakers. He should have kept his mouth shut and found some other reason for withdrawing the benefits.
    At this point, even if the state can find a legitimate reason for withdrawing the benefits, Nike could claim that such a reason was just a pretext.

    1. But you’re urging actual pretext. State actors lying to avoid accountability.

      1. Why would anyone find that the least bit unusual? It’s just another dog bites man story. The IRS Scandal comes to mind. No lost jobs, no retribution under the law at all. Using weaselly lawyer-talk that sounds like your saying something, while saying nothing at all. The ‘coincidence of Bill Clinton just happening to meet the Loretta Lynch while Hillary was under ‘investigation’. Pretext is everywhere and ongoing. Live with it.

    2. He should have kept his mouth shut and found some other reason for withdrawing the benefits.

      You’re missing the point entirely. Ducey’s whole purpose was to make a public statement about Nike’s action, for political reasons. If he had quietly withdrawn the benefits for some other reason, it wouldn’t have accomplished his objective.

      1. I should add that, as such, he was not a “fool” at all; he did what he set out to do. If Nike does take him to court and win, so be it; his supporters will remember that he tried.

  18. The list of extremists using the Betsy Ross Flag is a long and troubled one. Some examples, Obama at his Inauguration, The Philadelphia 76’ers Basketball Team and, New England Patriots. Clever of CK to boycott the NFL in his unusual fashion. We must oppose these Racists listed above and shame them unto eternity.

  19. […] Eugene Volokh noted at The Volokh Conspiracy, though, that this action by Governor Ducey could violate the First Amendment: […]

  20. […] that the decision to remove incentives over political and ideological expression will result in a court date, with plenty of precedent to favor […]

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