National anthem as a mandatory game-starter? Florida free-speech test.

The bellwether state of Florida now is amping up the volume in a nationwide discourse on race as a core facet of political culture wars.

Under Gov. Ron DeSantis, a potential top contender for the 2024 Republican presidential nomination, the state has raised penalties for organizers of protests, banned teachers from putting the words “critical” and “race” next to each other in a sentence, and barred professors from testifying against state policies on voting rights and public health mandates. All of those moves carry racial implications. And many are headed for court: A judge issued an injunction against the “anti-riot law,” calling it ”constitutionally vague.” 

Now state lawmakers are debating a bill that would compel private sports teams like the Jacksonville Icemen or Miami Dolphins to play “The Star-Spangled Banner” at each game. Note: This already is a pregame tradition for professional sports. Codifying it into law could run into First Amendment challenges.

Governor DeSantis has rhetorically situated the Sunshine State as “freedom’s vanguard.” 

Yet many say moves by Republicans in Tallahassee to use the power of the state to arbitrate what citizens say, when they say it, and how they say it have put the Sunshine State at odds with the warning contained in a 1943 U.S. Supreme Court ruling penned by Justice Robert Jackson: that “no official ... can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

That landmark ruling affirmed that the First Amendment protection of free speech shields public school students from being forced to salute the American flag or say the Pledge of Allegiance.

That the current debate is playing out partly in hockey rinks in Florida is no surprise to Steve Miska, president of First Amendment Voice, a nonpartisan think tank.

“Sports are the closest thing we have to tribalism in the U.S. besides political parties nowadays – and political parties are losing a lot of their appeal,” says Mr. Miska. “I think this is going to be a messy place” for the First Amendment.

The anthem as a focal point on race

Much like fisticuffs in hockey, the national anthem is part of the spectacle and entertainment. 

But when primarily Black athletes began taking a knee during the anthem in solidarity with social justice protests over controversial instances of Black people being killed by police, then-President Donald Trump and many other conservatives saw it as a culture-war demarcation that could be used for political effect.

A decision by Dallas Mavericks owner Mark Cuban to forgo the anthem at the height of protests over the murder of George Floyd in 2020 heightened the backlash.

When Texas passed the first law to mandate the anthem last fall, 10 of 13 Democrats in the state Senate approved it.

For David Papaj in Jacksonville, a fan of the Icemen, that kind of bipartisan support is a no-brainer. “I mean, what team wouldn’t play the national anthem? We’re Americans, right?”

A conservative brand of freedom 

In that way, Governor DeSantis has argued that Florida is setting standards that patriots like. 

In his view, Americans – including liberal ones – are flocking to Florida because it represents ideals like low taxes and the individual’s right to make health decisions around masks and vaccines.

“While so many have consigned the people’s rights to the graveyard, ... Florida has stood strong as a rock of freedom,” he said this month in his annual State of the State speech.

Governor DeSantis has painted himself as a First Amendment champion. Florida became the first state to impose sanctions against social media companies that “deplatform” politicians for violating their terms of service agreements around hate speech and spreading misinformation.

Now committees in the Florida Legislature are pushing forward a bill that would bar teachers from airing ideas that would cause any student “discomfort, guilt, anguish” or distress about their race, gender, or national origin. The bill pits itself against education efforts such as critical race theory, which, in the eyes of opponents, promotes white guilt for racial sins in the nation’s past. 

Democratic lawmakers say the measure is effectively gagging teachers and making it impossible for people of color to speak about their own lived experience. “I’m not anti-American, but I am an American, and my voice matters just as much as your voice,” Rep. Ramon Alexander said in Tallahassee, speaking about the bill barring teachers from making students “feel uncomfortable” during lessons. At one point, he grew tearful talking about his own patriotism and singing the national anthem. “My reality matters as much as your opinion. And you can’t handle the truth.”

Anticipatory obedience

Courts have found evidence that lawmakers are also engaging in picking and choosing viewpoints, and using the power of the state as a way to enforce their preferred views.

The strategy, experts say, hangs on a legal concept called anticipatory obedience, or self-censorship for fear of retribution.

How it works was outlined in a recent U.S. District Court ruling that found the state-funded University of Florida system violated the constitutional rights of six professors by barring them from testifying on public health and voting rights, when their views would be at odds with state policy.

In a blistering ruling on Jan. 21, U.S. District Judge Mark Walker found that the university used an arbitrary approval process for professors to speak to courts or the media that caused “palpable reticence and even fear on the part of faculty to speak up” on hot topics. 

In his ruling, Judge Walker said university administrators appeased lawmakers by comparing respected faculty to “moonlighters,” “robbers,” “traitors,” “political hacks,” and “disobedient liars.” The effect, wrote Judge Walker, is the chilling of speech by teachers whose viewpoints are of “transcendent value” to society. 

“A democracy allows people to determine what the public opinion is,” says Robert Post, a law professor at Yale University in New Haven, Connecticut. “A country which is totalitarian wants to shape the nature of public opinion. It does that by preventing people from speaking, and it does it by requiring people to speak in ways that are false or they don’t believe. Both are fascist. That’s what you see evidence of here.” 

Simmering tensions in society

A recent incident at Jacksonville’s hockey arena shows, at least to some, the problems with shutting down how people speak about a topic fraught with such enduring tension as race. 

During overtime play, a Black player for the South Carolina Stingrays looked around to see a white Jacksonville Icemen player making what he called “monkey gestures” at him. The Black player, Jordan Subban, commenced to punch the white player, Jacob Panetta, in the face several times. The bench cleared. 

Later, the Icemen cut Mr. Panetta from the roster, and he has been suspended for the rest of the season by the league, the ECHL.

Mr. Panetta apologized, saying he didn’t intend to make a racist gesture. He said he was taunting Mr. Subban for only fighting when referees are close by. Instead of a monkey gesture, Mr. Panetta said it was an “Oh, you’re such a big guy when the refs are around” bodybuilder gesture.

But for New Jersey Devils defenseman P.K. Subban, the brother of Jordan Subban, the taunts fit a larger pattern where papering over the past can give liberty to discriminate and hate in the future. It was the second alleged racial taunt by a white player against a Black one in the U.S. minor leagues in a span of a few days.

And those taunts came just days after a Florida House education committee stamped its support on what critics call the “white discomfort” bill.  

“For us, this is life,” P.K. Subban told reporters last weekend. “This is life for us, and that’s what is sad. This is life for people who look like me who have gone through the game of hockey. And that’s part of the history, whether we like it or not.”

Mr. Miska, a retired Army colonel, spent 40 months on combat duty in the Middle East. Today, many of his veteran buddies struggle to understand tendencies by political leaders to use the state to either punish or compel speech to enforce or denounce a particular viewpoint – in a sense exploiting instead of seeking to bridge racial divides.

“The danger is what [Harvard professor] Arthur Brooks calls the ‘rhetorical dope peddlers’: people who profit from the division and the polarization,” says Mr. Miska. “And maybe that’s the norm for our country.” 

For Icemen fan Joe Ferraro, “The Star-Spangled Banner” is hardly divisive. If fandom is tribal, then, to him, the singing of the anthem is a reminder that everybody belongs to a bigger team.

His father, a Marine, made him stand lock-straight whenever the national anthem played on the TV before a game. On Saturday night, there Mr. Ferraro stood, ramrod straight, baseball cap over his heart.

It bothers him that some Americans don’t seem to understand how respecting traditions can be a cornerstone of national unity.

Yet after having spent a career in the military himself, he senses a false note.

Forcing a team to play “The Star-Spangled Banner,” he says, “does feel like communism.”