By Brigitta Glunk*
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Foul on Free Speech: Introduction
The First Amendment of the United States Constitution, likely the most well-known component of the Bill of Rights, is often characterized as one of the cornerstones of American democracy. Perhaps the most oft-cited and frequently debated aspect of the First Amendment is the right to freedom of speech. Considered “one of the founding principles of the United States[,] . . . freedom of speech grants all Americans the liberty to . . . speak their minds without fear of being censored or persecuted.”
The right to freedom of speech does have boundaries, as “people’s individual rights must be balanced against the rights of society.” Historically, courts have played an important role in establishing these limitations, as disputes over First Amendment rights have required “continuing interpretation by the courts” of highly-controversial subject matter. While the many cases involving freedom of speech provide invaluable insight into the magnitude of the protection offered by the First Amendment, the recent conflict between the National Basketball Association (“NBA”) and the Chinese government raises critical questions about freedom of speech and “the influence of China on free speech in corporate America.”
Out of Bounds? Facts of the Event
On Friday, October 4, Houston Rockets General Manager Daryl Morey posted an image on Twitter, an international social media platform, that contained seven simple words: “Fight for freedom, stand with Hong Kong.” This tweet, which was intended to support the pro-democracy demonstrations in Hong Kong, was posted at a time of heightened tension in the region, with four months of increasingly violent protests culminating in drastic actions. While Hong Kong remains frustrated with the “perceived interference by Beijing in its political and judicial processes,” Chinese president Xi Jinping has warned that “[a]ny attempt to split China will ‘end in crushed bodies and shattered bones.’”
Morey’s “tweet heard round the world” instantly incited an international geopolitical conflict that would remain at the forefront of media headlines for weeks to come. Though the social media post was quickly deleted and its content acknowledged by Rockets owner Tilman Fertitta, who stated that Morey “does NOT speak for” the Rockets, the damage was already done, and the NBA unexpectedly found itself at the heart of a tense dispute with the Chinese government. The NBA, which “has spent years and many millions of dollars investing in China, helping to build courts, giving broadcasting rights away for free and bringing its stars over for preseason games,” relies on its pervasive popularity in China for at least 10% of its current revenue and expects this number to increase as high as 20% by 2030. Last year alone, more than 600 million people watched NBA games on Chinese television networks and nearly 500 million people in China streamed NBA programming online. Currently, China is the second-largest market for the NBA, trailing only behind the United States.
China, in the midst of high-stakes trade talks with the U.S. and already under international scrutiny for the increasing violence in Hong Kong as well as its alleged human rights abuses in the Xinjiang region, wasted no time in responding to the incident. By Sunday, October 6, both CCTV, China’s top state broadcaster’s sports channel, as well as Tencent, CCTV’s online streaming partner, announced that they would no longer be airing games or reporting news involving the Rockets. Tensions continued to grow as the first NBA preseason game, scheduled for that Thursday, October 10, in Shanghai between the Los Angeles Lakers and the Brooklyn Nets, approached. The dispute even drew in political actors, with China’s consulate general in Houston making a statement advising the team to “clarify and immediately correct the mistakes.” After some “agonizingly cautious and wavering responses to Morey’s tweet” and with pressure for an official statement from the NBA increasing by the day, NBA Commissioner Adam Silver acknowledged the conflict the following Tuesday, stating that “[t]he NBA will not put itself in a position of regulating what players, employees, and team owners say or will not say . . . we simply could not operate that way.” Along with this stance against censorship, Silver additionally noted, “I do know there are consequences from freedom of speech; we will have to live with those consequences . . . For those who question our motivation, this is about far more than growing our business.”
Although American fans and politicians on both sides of the aisle criticized the NBA’s statement, believing it was not strong enough, China certainly felt otherwise. The response was undoubtedly salient: Tencent and CCTV “decided to immediately halt” all broadcasts of NBA preseason matches taking place in China, eleven out of thirteen of the NBA’s official Chinese partners suspended ties with the league, and even physical reminders of the country’s ties to the league – including signage featuring NBA stars LeBron James, Kyrie Irving, and Anthony Davis – were rapidly removed from sight.
Layup or Lie Down: Impact of the Incident
In the recent past, American sports have served as a unique platform for commentary on social issues, whether involving National Football League (NFL) players wearing pink to support breast cancer in October, various championship winners boycotting a visit to the White House for political reasons, or, perhaps most famously, NFL player Colin Kaepernick’s highly-controversial act of kneeling during the National Anthem to protest injustice against racial minorities in the United States. The NBA in particular has made “efforts to cast itself as a force for positive social change” and in the past has not hesitated to take a stance on provocative topics, including the 2016 enactment of the North Carolina transgender bathroom law and the racist comments made by Donald Sterling, former owner of the Los Angeles Clippers, in 2014.
Though previous controversial statements from those involved in U.S. professional sports have certainly sparked debate domestically, a conflict of this nature and degree between an American sports league and the federal government of another country – a country with which the United States has a historically tense relationship, nonetheless – is seemingly unprecedented. Still attempting to navigate these contentious circumstances, the NBA currently faces a critical choice: support Morey’s First Amendment rights and risk the financial backlash from China or distance itself from these freedom of speech issues and risk losing support from its domestic fans. Only time will tell whether the NBA will conclusively side with First Amendment rights, but one thing is clear: with a $4 billion market at stake, freedom of speech is certainly not always “free.”
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Widger School of Law
 U.S. Const. amend. I.
 See U.S. Institutions – Why is the First Amendment Important?, VOA Editorials, https://editorials.voa.gov/a/the-importance-of-the-first-amendment-/3733070.html (last visited Oct. 31, 2019) (describing significance of First Amendment protections for U.S. citizens); What Is the First Amendment and What Does It Do?, VOA News, https://www.voanews.com/usa/what-first-amendment-and-what-does-it-do (last visited Oct. 31, 2019) (providing details about First Amendment protections).
 See Michael Gonchar, Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?, N.Y. Times (Sept. 12, 2018), https://www.nytimes.com/2018/09/12/learning/why-is-freedom-of-speech-an-important-right-when-if-ever-can-it-be-limited.html (presenting additional information about First Amendment, freedom of speech, and its limitations in application).
 Id. (describing protection of right to free speech).
 What Is the First Amendment and What Does It Do?, supra note 2 (detailing limitations of freedom of speech protection).
 See id. (discussing role of U.S. courts in determining boundaries of First Amendment rights).
 Jessie Yeung and Eric Levenson, LeBron James says NBA exec was 'misinformed' in his tweet supporting Hong Kong protests, CNN (Oct. 15, 2019), https://www.cnn.com/2019/10/14/us/lebron-james-nba-china-intl-hnk-scli/index.html (providing perspective of professional basketball player LeBron James on conflict between NBA and China).
 See Jordan Valinsky, How one tweet snowballed into the NBA’s worst nightmare, CNN Business (Oct. 11, 2019), https://www.cnn.com/2019/10/09/business/nba-china-hong-kong-explainer/index.html (outlining timeline of events surrounding conflict between NBA and China).
 See Yeung and Levenson, supra note 7 (detailing escalation of violence in Hong Kong protests, which have recently included burning of Chinese flags and attacks on Chinese-owned businesses).
 Mark Dreyer, China NBA: How one tweet derailed the NBA's China game plan, BBC News (Oct. 10, 2019), https://www.bbc.com/news/world-asia-china-49995985 (providing summary of conflict between NBA and China); Yeung and Levenson, supra note 7 (describing present strained political relationship between China and Hong Kong).
 Valinsky, supra note 8 (outlining timeline of events surrounding conflict between NBA and China).
 Id. (quoting response of Houston Rockets owner Tilman Fertitta on Twitter).
 Id. (describing extent of NBA’s financial investment in Chinese market).
 See id. (providing statistics about NBA popularity among Chinese residents); Dreyer, supra note 10 (emphasizing significance of Chinese market for NBA).
 See Dreyer, supra note 10 (signifying importance of Chinese market for NBA).
 See Valinsky, supra note 8 (noting that U.S. and China currently engaged in trade talks and acknowledging U.S. decision to place twenty-eight Chinese entities “on a blacklist that effectively bars them from importing American technology over the groups' alleged role in facilitating human rights abuses in China's Xinjiang region”).
 See id. (describing response of Chinese media to Morey’s tweet).
 See Joshua Berlinger, Lakers and Nets warmly greeted by Chinese fans but NBA remains jittery, CNN (Oct. 10, 2019), https://www.cnn.com/2019/10/10/asia/lakers-nets-preseason-china-intl-hnk/index.html (providing details of first NBA preseason game in Shanghai between L.A. Lakers and Brooklyn Nets).
 Valinsky, supra note 8 (quoting statement from Chinese consulate general in Houston, Texas).
 Id.; see Jake Novak, China’s heavy-handed reaction to the NBA is just the wake-up call the world needed, CNBC (Oct. 8, 2019), https://www.cnbc.com/2019/10/08/chinas-reaction-to-the-nba-is-the-wake-up-call-the-world-needed.html (characterizing NBA response to Morey’s tweet and resulting conflict).
 Valinsky, supra note 8.
 See Dreyer, supra note 10 (describing American response to NBA’s statement regarding China conflict).
 See Valinsky, supra note 8 (detailing Chinese response to NBA’s statement regarding China conflict); see Ryan Gaydos, NBA in China: Lakers, Nets Shanghai preseason game to have no media availability, Fox News (Oct. 10, 2019), https://www.foxnews.com/sports/lakers-nets-preseason-game-china-media (noting suspended partnerships between NBA and its Chinese sponsors and removal of NBA signage from public spaces).
 See NFL Supports National Breast Cancer Awareness Month With A Crucial Catch Campaign, NFL Communications, https://nflcommunications.com/Pages/NFL-Supports-National-Breast-Cancer-Awareness-Month-With-A-Crucial-Catch-Campaign.aspx (last visited Oct. 29, 2019) (detailing NFL support of National Breast Cancer Awareness Month); Cork Gaines, Championship teams visiting the White House has turned into a mess — here is how Trump and the teams have wrecked the tradition, Business Insider (June 26, 2019), https://www.businessinsider.com/championship-teams-trump-white-house-2019-4 (listing professional athletes and teams refusing to visit White House after winning championship); ESPN.com News Services, Colin Kaepernick protests anthem over treatment of minorities, The Undefeated (Aug. 27, 2016), https://theundefeated.com/features/colin-kaepernick-protests-anthem-over-treatment-of-minorities/ (summarizing story of Colin Kaepernick and his experience in NFL after choosing not to stand for National Anthem in protest of injustice against racial minorities in U.S.).
 See Novak, supra note 20 (describing NBA’s previously outspoken voice in social justice issues).
 See Valinsky, supra note 8 (detailing conflict between NBA and Chinese government).
 See Yeung and Levenson, supra note 7 (noting dilemma facing NBA as result of conflict with China).
 See Laura He and Yong Xiong, China suspended ties with the NBA last week. Now it's starting to restore them, CNN Business (Oct. 14, 2019), https://www.cnn.com/2019/10/14/business/china-nba-dispute-tencent-livestream/index.html (stating that “NBA's business in China is worth an estimated $4 billion”).