# Expensive Speech in the NBA **URL:** \ **Category:** Great Debates\ **Created:** [January 5, 2001, 8:22am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551 "2001-01-05T08:22:21Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![RoboDude](https://avatars.discourse-cdn.com/v4/letter/r/bbe5ce/32.png) [@RoboDude](https://boards.straightdope.com/u/RoboDude)\ **Post date:** [January 6, 2001, 10:37pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/21 "2001-01-06T22:37:31Z")
True, but there is a huge difference between having a _legal_ right to do something and having an _ethical_ right to do it. The NBA may be 100% within its legal rights regarding the gag rule, but IMO they have an ethical obligation to allow coaches and players to make their disagreements known in a polite, respectful manner. ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [January 6, 2001, 10:37pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/22 "2001-01-06T22:37:38Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\* > ::sigh:: The First Amendment prevents the _ **government** _ from interfering with a citizen’s right to free speech. > \*\* I think your head-banging may have dulled your perception of the following point: the NBA is a special situation. It is not the team that employs the player or coach that is enforcing these rules, but a _league_ that forbids criticism. In effect, an entire industry (there are no alternatives if you want to play pro basketball at the highest level) is preventing individuals from speaking freely. A comparable situation would be if you wanted to work in a specialty manufacturing field, and all of the companies you could work for were controlled by an oversight group that forbade you as a condition of work from speaking your mind, regardless of how your employer felt about it. Seems potentially actionable to me. ---
**Author:** ![JDeMobray](https://avatars.discourse-cdn.com/v4/letter/j/85e7bf/32.png) [@JDeMobray](https://boards.straightdope.com/u/JDeMobray)\ **Post date:** [January 7, 2001, 1:13am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/23 "2001-01-07T01:13:15Z")
The NBA, and her sister organization, the WNBA are unlike major league baseball in that they do not have anti-trust protection. (See also: The ABL) If someone like Vince McMahon wanted to form his own XBA (Bodychecking? Sure!) and compete with the NBA then he is welcome to. Further, there are other organizations which will pay you real cash-money to do nothing aside from play basketball. The CBA right here in the United States comes to mind. There are also a number of leagues in them screwy foreign countries where well meaning millionaires waste their money on spoiled american talent (See also: Maxwell, Vernon). The NBA has no control over the CBA and players who feel that David Stern is violating their rights are more than welcome to play there. People, this is a **non-issue**. These players, who I respect, are paid ridiculous sums of money to play a freakin’ game. The NBA asks them to keep their griping out of the media, and to please not commit felony assault _while_ in uniform. (Although, like KSO pointed out, they would probably make an exception for Michael :)). ---
**Author:** ![Dignan](https://avatars.discourse-cdn.com/v4/letter/d/f07891/32.png) [@Dignan](https://boards.straightdope.com/u/Dignan)\ **Post date:** [January 7, 2001, 4:49am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/24 "2001-01-07T04:49:16Z")
Yeah, umpires/refs are usually inconsisstent. They are on power trips a lot of the time too. The two umpires I hate the most: Eric Gregg (hey, that pitch went into the dugout, but the guy should’ve been able to hit it) and John Hirschbeck (Yeah, it was too bad that he got spit on, but I think he is a real jerk, specifically I remember him being a real d\*\*k to Hideki Irabu a couple of years ago). Kind of a funny story to prove that refs go on power trips, back when I played hockey (when I was younger) a high school kid would ref the games. Opposing parents would shout about him not being able to do something, he would then make a comment about, “He doesn’t think I can do that? I’ll show him!” He would then go on to call a phantom penalty just to stick it to the guy in the crowd. Last I saw him he was a mall cop while attending the academy. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [January 7, 2001, 8:05am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/25 "2001-01-07T08:05:03Z")
> [@](#): > > \*Originally posted by JDeMobray \* > \*\*The NBA, and her sister organization, the WNBA are unlike major league baseball in that they do not have anti-trust protection. (See also: The ABL) If someone like Vince McMahon wanted to form his own XBA (Bodychecking? Sure!) and compete with the NBA then he is welcome to. \*\* Major League Baseball had its antitrust protection removed by an Act of Congress back in 1998. I don’t believe any sport is exempt from antitrust laws now. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 7, 2001, 9:15am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/26 "2001-01-07T09:15:46Z")
Really, **Bob**? I thought they were still partially exempt. I believe ya, though. And **JDeMobray** , my concern isn’t for those poor, poor millionaire players–rather, it’s that as a fan the NBA loses my respect (and my money and my viewership) by seemingly clinging to the illusion that referees are not prone to human error (and, for that matter, that equal treatment in officiating is given to each player). I don’t argue that they have a right to institute the gag rule; I just think that such a rule is silly and even counter-productive–not to mention, as has been pointed out, that the gag rule itself doesn’t even affect every player equally. Kobe Bryant can complain _post facto_ with virtual impunity, and Rasheed Wallace looks at a ref and gets tossed from the game. Wallace’s recourse, then, is to go play for the CBA? He can’t point out that the refs are singling him out without being fined and singled out even more. That’s some catch, that Catch-22. To me, the gag rule is reminiscent of the time Mahmoud Abdul-Rauf was (suspended? fined?) punished for refusing to stand for the American national anthem. Within the NBA’s rights? Probably. But I still thought it was overbearing and ridiculous. ---
**Author:** ![slowhand53](https://avatars.discourse-cdn.com/v4/letter/s/a698b9/32.png) [@slowhand53](https://boards.straightdope.com/u/slowhand53)\ **Post date:** [January 7, 2001, 11:02am UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/27 "2001-01-07T11:02:31Z")
> [@](#): > > \*Originally posted by Baloo \* > \*\* > > > [@](#): > > > > \*Originally posted by SuaSponte \* > > \*\*The NBA rule book contains nothing that forbids rape, murder, or dismemberment on the court. Get off MJ’s back!! \*\* > > Oh, yeah? What will spilling all that blood do to those hardwood floors, though? I’ll bet there’s a rule against _that_, isn’t there? After all, someone could slip and fall. > \*\* I don’t recal a rule about the hardwood but… acording to the Magic rule the nun would have to get the bleeding under control before being allowed back onto the court 🙂 ---
**Author:** ![JDeMobray](https://avatars.discourse-cdn.com/v4/letter/j/85e7bf/32.png) [@JDeMobray](https://boards.straightdope.com/u/JDeMobray)\ **Post date:** [January 7, 2001, 5:37pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/28 "2001-01-07T17:37:09Z")
> [@](#): > > \*Originally posted by Gadarene \* > **Wallace’s recourse, then, is to go play for the CBA? He can’t point out that the refs are singling him out without being fined and singled out even more. That’s some catch, that Catch-22.** You misunderstand the rule. Rasheed can complain. He can complain to his coach. He can complain to his (very powerful) players union rep. He can even complain directly to the league office and ask for an arbitration hearing. He can’t complain to the ref’s themselves during the game, as it disrupts play. He also can’t complain to Jeffery Denberg, Peter Vescey, David Aldridge, or what have you. Now, I don’t know where you work, but in most businesses they have rules about who can talk to the media and under what circumstances without risking disciplinary action. I know that we do where I work, and I work at a newspaper! Why should the NBA be any different? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [January 7, 2001, 5:54pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/29 "2001-01-07T17:54:09Z")
> [@](#): > > \*Originally posted by Jackmannii \* > \*\* > > > [@](#): > > > > \*Originally posted by SuaSponte \* > > \*\* > > ::sigh:: The First Amendment prevents the _ **government** _ from interfering with a citizen’s right to free speech. > > \*\* > > I think your head-banging may have dulled your perception of the following point: the NBA is a special situation. It is not the team that employs the player or coach that is enforcing these rules, but a _league_ that forbids criticism. In effect, an entire industry (there are no alternatives if you want to play pro basketball at the highest level) is preventing individuals from speaking freely. A comparable situation would be if you wanted to work in a specialty manufacturing field, and all of the companies you could work for were controlled by an oversight group that forbade you as a condition of work from speaking your mind, regardless of how your employer felt about it. > > Seems potentially actionable to me. \*\* Makes no difference. Congress, acting through its power under the Commerce Clause, has instituted what could be considered speech limitations in the areas of sexual and racial relations. They aren’t really considered speech issues, as they are considered actions. But that’s as far as they go. Even undeniably protected speech can be forbidden in the workplace. For example, a company can fire you if you are soliciting fellow employees to vote for your candidate. Of course, there are limitations on this, though not constitutional ones. If you live in a state with sufficient labor protections, you can sue for wrongful discharge if your exercise of free speech did not adversely affect the operations of your employer (e.g. you spoke out about non-business related issues on your own free time.) It doesn’t matter whether a private speech restriction is put in place by a single employer or an entire industry, so long as anti-trust issues aren’t implicated. For that to happen, the restrictions on speech would have to have some anti-competitive impact. I can’t see how an league-wide ban on criticizing fellow employees would have any. The First Amendment is solely a prohibition on government action, and the private sector can do what they want. Sua ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [January 7, 2001, 6:34pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/30 "2001-01-07T18:34:15Z")
Thanks for the additional input, Sua. I had not singled this out as a First Amendment issue (there are free speech issues that do not necessarily rise to the level of constitutional challenge), or even as one that necessarily could be litigated. Even if there is no state or federal statute, preferential tax treatment or regulatory issue that could come into play, some group devoted to protecting free expression could probably find a lever to pressure the NBA on this matter. Given the nature of the individuals involved, this would probably be an even less popular cause than sticking up for the rights of pornographers. ---
**Author:** ![muttrox](https://avatars.discourse-cdn.com/v4/letter/m/a8b319/32.png) [@muttrox](https://boards.straightdope.com/u/muttrox)\ **Post date:** [January 8, 2001, 1:53pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/31 "2001-01-08T13:53:22Z")
Everyone seems to have accepted it as a given that there \*\*are[\b] special superstar rules. Where’s the justification for this assumption? I ain’t saying it ain’t so, but I’ve never seen any evidence for it. ---
**Author:** ![PatrickM](https://avatars.discourse-cdn.com/v4/letter/p/7feea3/32.png) [@PatrickM](https://boards.straightdope.com/u/PatrickM)\ **Post date:** [January 8, 2001, 5:06pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/32 "2001-01-08T17:06:47Z")
BobT wrote: [/QUOTE] Major League Baseball had its antitrust protection removed by an Act of Congress back in 1998. I don’t believe any sport is exempt from antitrust laws now. [/QUOTE] Actually, the “Curt Flood Act of 1998”, Pub.L. No. 105-297, revoked Major League Baseball’s antitrust exemption only with regard to labor matters, so that the Commissioner’s right to subject a team owner to a gag order for the best interest of baseball is still exempt from antitrust laws. See Chuck Boring’s article, “LawBall: A Guide to Researching Baseball Antitrust Exemption”, at [http://www.gus.edu/~gs07cpb/guide.htm](http://www.gus.edu/~gs07cpb/guide.htm). ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [January 8, 2001, 8:27pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/33 "2001-01-08T20:27:51Z")
SuaSponte wrote: > [@](#): > > Congress, acting through its power under the Commerce Clause, has instituted what could be considered speech limitations in the areas of sexual and racial relations. [hijack] Speaking of the Civil Rights Act of 1964: I thought Congress’s “commerce” power only covered interstate commerce. How did they get the power to pass laws against discrimination in companies that hire only within one State and buy and sell only within the same State? [/hijack] ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 8, 2001, 9:14pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/34 "2001-01-08T21:14:23Z")
**tracer:** > [@](#): > > During the New Deal, the Supreme Court at first resisted, but eventually capitulated, to a wholesale expansion of congressional power over commerce. Initially, the Court prohibited Congress from regulating commercial activities that were regarded as production and manufacture, as “local” or intrastate, or that affected commerce only “indirectly.” These formulas were variations of dual federalism. By 1936 the Court began to embrace what it had accepted intermittently in the past: intrastate activities having a substantial relation to interstate commerce could be regulated by Congress. –_Constitutional Structures: Separated Powers and Federalism_, p429. The book goes on to contrast the “dual federalism” of 1835-1937 with what it calls cooperative federalism, defined like this: > [@](#): > > Businesses “affected with a public interest” or with a substantial relation to interstate commerce may be regulated by Congress. … Congress may preempt state regulation but, until it does, states may regulate with standards that differ from federal requirements.(p431) Does that help at all? Also: > [@](#): > > In a famous footnote written by Justice Stone in a 1938 case, the Court suggested that it might have a special responsibility to protect “discrete and insular minorities,” especially when the political processes that supposedly safeguard minority rights have been curtailed. This footnote foreshadowed the Court’s later activism in such areas as religious liberty, racial discrimination, and criminal rights. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 8, 2001, 9:29pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/35 "2001-01-08T21:29:55Z")
Here’s a passage (from another book) that’s more specifically about civil rights: > [@](#): > > …_Jones v. Alfred H. Mayer Co._, 392 U.S. 409 (1968), held that Congress intended to forbid private racial discrimination in the Civil Rights Act of 1866 and that it had the authority to do so under the Thirteenth Amendment. The Burger Court, furthermore, extended that ruling and reinforced the Civil Rights Act of 1866 as a barrier to private racial discrimination in housing, schools, and employment, whenever there is proof of intentional discrimination. _Constitutional Law and Politics, Volume Two: Civil Rights and Civil Liberties_, p1287 ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 8, 2001, 9:53pm UTC](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551/36 "2001-01-08T21:53:17Z")
To sum up, then–man, I could have fit this all into one post if I had tried–it looks like the justification for regulating discrimination in hiring practices lies not only with the Court’s twentieth century interpretation of the Commerce Clause, but also in their readings of the Thirteenth and Fourteenth Amendment, as well as a desire to conform to past legislative intent. From what it says in the books I have, though, it doesn’t seem as if the issue meets with universal consensus among the Justices, even today. [Previous page](https://boards.straightdope.com/t/expensive-speech-in-the-nba/48551.md?page=1)