A Louisiana Mayor’s Ban of Nike Products Violates the First Amendment

By Alanah Odoms Hebert and Brian Haus

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 recreational 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 explained 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 continues today.

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.

Alanah Odoms Hebert  is Executive Director of ACLU of Louisiana & Brian Hauss is Staff Attorney of the ACLU Speech, Privacy, and Technology Project


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18 thoughts on “A Louisiana Mayor’s Ban of Nike Products Violates the First Amendment”

    1. David Greenwald

      I think it’s dangerous to play this game either way. I don’t see how what the Louisiana mayor is doing is legal. That’s an easy lawsuit win if he ever tries to enforce it.

      1. Keith O

        Hasn’t the City of Davis refused to do business with Wells Fargo Bank?

        So let’s get this straight, if it’s a liberal city or state that bans business with right leaning companies than we don’t hear a peep.

        1. David Greenwald

          In one case, the city refused to do business directly with a business. In this case, they are trying to ban access to people wearing attire. Big difference.

        2. Ken A

          I’m wondering if someone can explain why it is OK for a government entity to ban a T-Shirt with an American flag (made in America by Americans), but not OK for a government entity to ban a T-Shirt with a Nike Logo (made in Asia by malnourished prison children), or if it is OK to ban straws, Happy Meal toys and plastic bags if it is also OK to ban plastic cups, cat toys and hemp yoga mat bags?

          http://www.americanfreedomlawcenter.org/press-release/ninth-circuit-upholds-ban-on-american-flag-shirts-in-a-california-high-school/

          P.S. Just like I’m pro choice on almost everything I’m against the Government banning almost anything…

        3. Jeff M

          Ken A – it has to fit in an accepted speech code “hate” narrative before it will be allowed by the media-powered mob.

          Banning symbols of religion, the flag, conservative ideals, etc…  those things are hateful and hurtful to people of a protected class, and the criticism of those people is backed by those not in a protected class, but that get their identity by virtue signaling in support of all those people in a protected class.

          It used to be “what ever did not kill you made you stronger.”   Now it is “what ever  slightly irritates a protect class critic can destroy you…. while they mistakenly believe they have been made stronger by that power.”

  1. Ken A

    Don’t forget the entire states CA has banned:

    https://www.sfchronicle.com/bayarea/article/California-adds-eighth-state-Oklahoma-to-12961611.php

    P.S. I know that crazy bible thumping right wingers love to “boycott” things but it seems like I hear about more “boycotts” from crazy tree hugging left wingers every year…

    P.P.S. I am in favor of a 49 state “travel ban” for CA state employees since there is no bigger waste of money than all the “conferences” that government employees jet off to every day to party on the taxpayer dime.

  2. Jeff M

    In one case, the city refused to do business directly with a business. In this case, they are trying to ban access to people wearing attire. Big difference.

    I just spit out my late morning coffee.  This is hilarious.  “Big difference”… NOT!

    You know… the problem I have been having with liberals lately is that they seem completely incapable of self-awareness related to the behavior of their ideological ilk.  They continue to spit hairs of nuance until the head is bald, and then they start splitting dust fragments.

    You had it right in your first post that it isn’t a good practice.  And if you still want to hold your position, I have some Chick-Fil-A stories to tell you.

    1. Eric Gelber

      Jeff – You may see the tendency to draw distinctions as a character flaw, but the tendency to overgeneralize can also be problematic.

      A government entity can choose not to do do business with states or countries that it believes promote discrimination–such as universities choosing to divest from South Africa during  apartheid, or a state refusing to authorize state-sponsored/funded travel to another state due to its discriminatory laws. What government can’t do, however, is prohibit individual free speech on government-owned property based on content–as this mayor is attempting to do–by prohibiting the wearing of apparel he finds to be politically objectionable.

      You need to analyze the facts and apply the law to each situation, and not draw false equivalencies. Splitting (or, in your words, spitting) hairs of nuance is, in fact, looking at the merits of each individual situation based on the facts and applicable law. That’s a good thing.

      Sorry you lost your coffee for no good reason.

      1. Eric Gelber

        Modifying one sentence: A government entity can choose not to do do business with states or countries or companies that it believes promote discrimination …

      2. Jeff M

        Eric, I think you have no more hairs left… no more dust left… you are splitting atoms now.  Better be careful or that will go nuclear on you.

        The biggest mistake that conservatives ever made was ignoring the danger of hate legislation  being exploiting by political operatives of the ideological left.  In other words, if you are a virtue-signaling lefty you can shut down free speech just because you claim it is hateful to certain protected groups, but then decry the same when it is claimed to be hateful to other groups not in the lefty protected class register.

        That is the stuff that helped elect DJT.

        1. Jeff M

          So, you would give up your interest in morality and subjugate it to the law?

          I think maybe your argument here is simply convenient.  The law supports you bias, so the law is supreme.  Unfortunately you have too much history for expressing your disagreement with the law when it does not support your bias.

          The list of government actors boycotting business for political and ideological reasons is either morally wrong, or morally acceptable.  Stop splitting protons on this.

    1. Keith O

      We’ll see about shareholder value.  Sure there has been an uptick  in increased sales of Kaepernick Nike products in the short term due to the current buzz.  But when things settle down I think Nike is going to see a huge downturn in sales.  There’s what I think a bigger buzz going to boycott Nike products.  We’ll see, this is still the top of the first inning.  It’s 1-0 Nike so far, but still a lot of game left.

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