UPDATE: On Wednesday, Mayor E. "Ben" Zahn III rescinded his policy barring the city of Kenner's booster clubs from buying or accepting delivery of Nike products at the city's recreation facilities.
The mayor of Kenner, Louisiana, doesn’t seem to like Colin Kaepernick much. He also doesn’t seem too happy that the sports merchandise juggernaut Nike made Kaepernick the face of its new “Dream Crazy” campaign. But instead of simply expressing his personal opinion, he’s trying to use the power of his public office to prevent others from expressing their support for Colin Kaepernick.
And that’s unconstitutional.
On September 5, Kenner Mayor E. “Ben” Zahn III issued a memorandum prohibiting private booster clubs operating at Kenner recreation facilities from buying or accepting delivery of any product with the company’s famous swoosh symbol. “Under no circumstances,” the memo reads, “will any Nike product or any product with the Nike logo be purchased for use or delivery at any City of Kenner Recreation Facility.” Under the new policy, the city’s director of parks and recreation must approve any athletic product or apparel before a booster club can purchase them.
On Wednesday, the ACLU and the ACLU of Louisiana sent a letter to Mayor Zahn informing him that his actions violate the First Amendment and advising him to rescind his policy immediately. We have taken this action because Zahn’s policy violates the First Amendment’s prohibition on content and viewpoint discrimination. It prevents booster clubs from purchasing Nike’s products based solely on the mayor’s opposition to Nike’s political expression.
How do we know this? Because Zahn said so himself.
After his policy caused a furor both locally and nationally, the mayor issued a follow-up statement on September 11. According to Zahn, he implemented his Nike ban because the company, “in its zeal to sell shoes, chose to promote and sell a political message.” The mayor couldn’t be any clearer. His policy is directed at the political message communicated by Nike and those who wear Nike apparel.
And no one should lose sight of what that message is. Kaepernick lost his job as a quarterback in the NFL because he has the temerity to kneel during the national anthem. Kaepernick has that he took a knee to protest rampant police brutality and discrimination against people of color across the United States. By doing so, he sparked the “Take-a-Knee” movement, which .
Zahn argues that his policy is an attempt “only to protect taxpayer dollars from being used in a political campaign.” This argument falls flat. While Kenner booster clubs receive city funds, they also raise their money from private sources, and the city has no legitimate interest in dictating which companies, causes, or “political agendas” booster clubs may support with their own money.
There is only one plausible conclusion for the mayor’s actions: He is trying to stop booster clubs from symbolically expressing their support for political views the mayor detests. That’s a textbook First Amendment violation.
Mayor Zahn, rescind your unconstitutional policy. Just do it.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Minnesota Supreme CourtNov 2024
Free Speech
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This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.