Nike Has Free-Speech Rights, Too

(Bloomberg Opinion) -- Now that the Fourth of July has slipped past, let’s take a quick look at a trio of controversies over history and tradition that erupted just as the holiday was creeping up on us.

The most prominent was the uproar over Nike’s decision to withdraw a version of its Air Max 1 Quick Strike honoring Betsy Ross, which was to go on sale around Independence Day. The shoe displayed on its heel the original U.S. flag with its 13 stars — which Ross either did or didn’t create — and was pulled after former NFL quarterback Colin Kaepernick pointed out to the company “that the Betsy Ross flag had been co-opted by groups espousing racist ideologies.”

I have two observations.

First: White supremacists shouldn’t get to decide for the rest of us the meaning of our historical symbols. I’m old enough to remember the Ku Klux Klan — not today’s pale shadow, but the Klan to which many Southern politicians of the 1960s still pledged open allegiance. The group’s rallies always featured American flags in abundance — you know, the 50-star kind — and nobody thought the rest of us had to give up on the symbol by letting the bad guys control its significance. In that sense, Nike’s action might be seen not as a strike against the white supremacists but as a surrender to them.

True, it’s not just the supremacists. The New York Times notes that some find the 13-star flag an offensive reminder of our nation’s “painful history of oppression and racism.”  Fair point. But I’m a great believer in confronting rather than avoiding the burdens of history. And besides, if the 13-star flag must be hidden away as a symbol of racism, what about the 13 stripes on the 50-star flag?

Second observation:  Furious about Nike’s decision, the governor of Arizona has canceled the $1 million in subsidies that the company was promised in return for opening a $184 million factory in the state. OK, this sort of political tit-for-tat happens all the time — but the Supreme Court has recently made things interesting. At the end of its most recent term, the justices ruled in Iancu v. Brunetti that the federal government cannot refuse to register a trademark for being “scandalous” — which the court defined as giving offense — because such a power would amount to viewpoint discrimination, which the First Amendment forbids.

Hmm. You get the Arizona subsidy if you sell the shoe with the 13-star flag but not otherwise?  Sure sounds like viewpoint discrimination to me. I don’t expect Nike to sue Arizona for violating the company’s First Amendment rights, but goodness that would be a fun case.


Now let’s travel to St. Louis Park, Minnesota, where the city council voted in June to end the practice of reciting the Pledge of Allegiance to open its meetings. At least part of the motivation seems to have been to emphasize that the town is “very welcoming and increasingly diverse.” This decision has led to predictable fury — and not just from the right. The editorial board of the Minneapolis Star-Tribune, no bastion of conservatism, weighed in against the city, which in turn has promised to revisit its position later this month.

Although a government institution can certainly do the people’s business without regularly pledging allegiance, the U.S. Congress opens its sessions with the Pledge of Allegiance. So does the town council in the Connecticut hamlet where my wife and I live. Since St. Louis Park is in Minnesota, let’s add this:  The Minnesota legislature begins its meetings with the pledge. Minnesota public school students are required by law to recite it at least once a week unless they opt out.

Moreover, the claim that the pledge is anti-diversity seems rather obscure. Wherever people might have come from originally, whatever the state of their documentation, whatever their religion or creed, most of those who live in the U.S. are here because they want to be. In its aspirational language, the Pledge of Allegiance arguably promotes rather than hampers diversity. Certainly there are threats to diversity; but the pledge isn’t high on the list.

Besides, as the Star-Tribune editorial pointed out, people who object to the pledge needn’t recite it; and they can even register their protests. I’ve long argued that a respect for vigorous dissent is at the heart of the American idea. The recital of the pledge to open a meeting signals only that those in positions of authority believe in what the flag stands for. The rest of us are free to do as we like.


Finally, let’s move on to Charlottesville, Virginia, which has voted to scrap its traditional commemoration of Thomas Jefferson’s birthday. Henceforth the city will celebrate instead Liberation and Freedom Day, marking the entrance of Union troops into the city on March 3, 1865. Unsurprisingly, social media erupted. Some critics accuse the city of hypocrisy, given that Charlottesville itself has a long history of racism.

Regular readers know I’m no fan of sweeping disagreeable history under the rug, but let’s not be too hasty. Here’s the Wall Street Journal on the city council’s motivation: “Charlottesville has been grappling for years with its history of discrimination. Those efforts intensified after white nationalists gathered in the city in 2017 for a rally that descended into violence.”

Well, “descended into violence” is one way to put it. What actually happened was that a self-proclaimed white supremacist deliberately drove his car into a crowd of counter-demonstrators, killing one and injuring two dozen.

Still, on the merits, let me note that I’m not as anti-Jefferson as a lot of my friends. He did terrible things, like owning human beings, and he also did good and important things, like drafting the Declaration of Independence. I have no problem with those who want to celebrate him, as long as they don’t hide how mixed his legacy is.

But I’m entirely onboard with the city council’s decision to celebrate the end of enslavement. My great-great grandfather Stanton was enslaved in Fauquier County, a bit north of Charlottesville, and was thrice carried back to Virginia in chains after escaping. In the end, Stanton successfully liberated himself. Alas, most of the South’s captive labor force was not as fortunate. Commemorating the end of this great national evil seems to me ... the patriotic thing to do.

Whatever you think of the “Under God” part, added by Congress in the 1950s, the Baptist preacher who wrote the pledge didn’t include it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

©2019 Bloomberg L.P.

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