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OUR OPINION: Free speech not an issue in nickname case

Call it bullying. Call it political correctness. Call it the unfair use of monopolistic power. Just don't call it a free-speech issue. Because whatever else the NCAA's nickname policy represents, it's not an infringement on free speech. Rep. Mike...

UND Fighting Sioux logo
UND Fighting Sioux logo

Call it bullying. Call it political correctness. Call it the unfair use of monopolistic power.

Just don't call it a free-speech issue. Because whatever else the NCAA's nickname policy represents, it's not an infringement on free speech.

Rep. Mike Schatz, R-New England, sees it otherwise. "For me, this has never been anything but a freedom of speech issue," Schatz wrote in a recent letter to the editor.

"Does an organization funded by public money have the right to tell a state what it can call its athletic teams? If it does, then we no longer live in a free society."

But Schatz is reading too much into the constitutional protection of free speech. According to the First Amendment, "Congress shall make no law ... abridging the freedom of speech"; and according to later Supreme Court decisions, state and local governments must refrain from abridging free speech as well.

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In other words, the First Amendment prevents the police from arresting a speaker or destroying a printing press. But it says nothing about private individuals or organizations who can and do block "speech" on a daily basis.

So, you can't give a speech in a shopping mall (without the management's permission), because a shopping mall is a private -- not public -- space.

You can't claim Random House abridged free speech when it declined your novel, because Random House -- a private company -- has no free-speech obligations to you or anyone else.

And you can't say an NCAA action is a "freedom of speech issue," because for a private organization such as the NCAA, there's no such thing.

But the NCAA is "funded by public money," Schatz suggests. Doesn't that impose special obligations on the association?

That's a good question, and in fact, it has been argued all the way up to the U.S. Supreme Court. But the court repeatedly has ruled that even though the NCAA deals with, accepts dues from and imposes rules on public universities, it remains a private -- not public -- organization.

Jerry Tarkanian coached men's basketball at the University of Nevada-Las Vegas. Due to a long string of rule violations, the NCAA in effect told UNLV to take an action -- in this case, suspend Tarkanian -- or face sanctions. (Sound familiar?) Not surprisingly, UNLV told the coach he was going to be suspended.

So Tarkanian sued. But in NCAA v. Tarkanian, the Supreme Court ruled that the NCAA is not a "state actor" and did not violate Tarkanian's constitutional rights when it issued its act-or-be-sanctioned demand on UNLV.

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"Justices uphold NCAA's right to demand suspension of coach," the New York Times headlined its story.

Then there is NCAA v. Smith, in which the court held that the NCAA, "even though it accepted membership dues from institutions that receive federal funding, was not itself a recipient of federal financial assistance and therefore could not be sued under Title IX," a U.S. civil-rights law, as one case summary described.

If the court had ruled otherwise, things would be different. But it didn't, so they aren't. The NCAA remains a private organization with myriad rules it imposes on members; if those members don't like it, they can choose not to be members. That's the situation UND finds itself in, repeated Supreme Court decisions suggest. And simply insisting that a constitutional issue also is at stake doesn't make it so.

-- Tom Dennis for the Herald

Opinion by Thomas Dennis
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