Standing or Kneeling, Your Rights When It Comes to Our National Anthem

It’s been over a year since Colin Kaepernick chose to take a knee during the national anthem in protest of the treatment of people of color in the U.S. At the time, the act was controversial. However, it led quite a few other professional athletes–and amateur athletes–to take up his cause and join him in kneeling. Even now, after the act has led to struggles in Kaepernick’s career–an odd sentence to write considering the criminal activities many other athlete’s careers have endured–there are an enormous number of athletes taking a knee in protest.

The act itself is something to be respected, protest is at the heart of U.S. values. However, it has faced an enormous amount of criticism as unpatriotic–in the media, online, and even from President Trump. The NFL has stated that they encourage, but do not require players to stand during the national anthem. But some associated with the NFL have come down hard on the protests. For instance, the coach of the Dallas Cowboys has said–after initially supporting the protesting players–that those who kneel during the national anthem will not play. This sort of response has led many to jump to the defense of these athletes on First Amendment grounds–arguing that the teams and NFL are trampling the athlete’s right to free speech and protest.

Unfortunately, while the cause and protest itself is important, this simply isn’t how the First Amendment works. To fully understand the rights involved in this situation, let’s look at how the First Amendment works, and the NFL rules on the topic.

The First Amendment Generally Doesn’t Protect Against Private Action

First and foremost, we need to discuss a fundamental rule of how and when the First Amendment applies. The First Amendment protects your speech, religion, and right to association against the government and public agents of the government–not private parties. Thus, as we’ve discussed in the past, it is very rare that freedom of speech is an issue for an employer. You also have very close to no rights when it comes to what other people

Unless you work for the government, there are very few situations where your employer is limited in how they can curtail your speech. Where the politics behind a firing overlaps with a protected class such a race, national origin, religion, or-in many states-sexual orientation or gender identity it can give rise to separate legal issues. Similarly, allowing a workplace environment where a boss or even many employees constantly discuss issues such as banning access to specific ethnicities, races, or countries, that can easily create a hostile work environment or constitute harassment. Both can lead to legal action against an employer.

Finally, an employer cannot punish political stances in a way that limits an employee’s ability to discuss terms of employment or unionization. For example, if employees feel a politician’s stances might impact their wages then an employer would generally not be able to punish them for talking about it. Otherwise, your employer–and the NFL–are basically free to limit their employers or players however they like.

The NFL, if they wanted, could almost certainly force its players to stand for the national anthem as a condition of playing. So, could the organization behind every team in the NFL. If they were a government organization, this wouldn’t be the case. Not only can the government not limit speech, the Supreme Court has held–as far back as during World War II–that citizens can choose whether they want to salute the flag. To make a law to the contrary has been clearly held to be unconstitutional. There is no question that this sort of ruling would extend to standing or sitting during the anthem.

This has raised some concerns in the public with how Trump has responded to the protests. He has publicly and vociferously condemned the athletes taking a knee, suggesting that owners should fire them in tweets. Many have pointed to his position and said that these statements are coercing owners into acting and, based on Trump’s position, have said this violates the First Amendment. This is not the case.

Are Trump’s comments inappropriate? Absolutely. However, it is unlikely that they rise to the level of a First Amendment violation.  Unless Trump threatens actual action in his presidential capacity against the players, the NFL, or their employers, it is unlikely his action will reach the level of being unconstitutional.

There’s also been some misunderstanding from lawmakers on how the law works when it comes to the First Amendment and protests. For instance, Oklahoma Senator James Lankford has compared the protests to the firing of a coach for saying a prayer in the field. However, Senator Lankford’s comparison–referring to an assistant high school football coach fired for refusing to stop praying on the 50 yard line at every game–only serves to highlight the important distinction we discussed earlier. This coach worked for a public school–a government institution bound by First Amendment rules. This is exactly what the 9th Circuit said on the issue earlier this year. By acting as he did, the coach violated the Establishment Clause of the First Amendment by prioritizing one religion over another as a representative of the government.

The NFL is a private company employing players, this is the bottom line when it comes to player’s right to protest.  The NFL is not limited by the establishment clause and the limits on how it restricts the speech of what are essentially their employees are minimal. How the NFL will respond is essentially just governed by NFL rules, the same goes for each individual team. Each NFL player has a contract which governs their employment.

You can bet that, for the most part, these contracts include restrictions on speech, behavior, and more which–when violated–allow for their release. Some common terms include requirements that players maintain public respect for the game and ensure their personal conduct doesn’t adversely affect the team–very broad provisions. This means that how the protests are treated is, for better or worse, mostly up to the individual teams. Other than that, the only remaining issue in the NFL’s rules.

NFL Rules

There’s been a fair bit of misinformation on the internet about NFL rules on the topic of the national anthem. To clarify the issue once and for all, the NFL rules do include a policy regarding the national anthem. However, they do not require players to stand.

The entirety of the rules of the topic can be summarized as follows. The anthem is played at every game, all players need to be at the sideline and on the field during the anthem. After that, every else is a suggestion–this was recently confirmed by the NFL itself.

This means the NFL isn’t interested in coming down one way or another on the protests, the issue is firmly in the hands of the teams.

These Protests are Important

So legally, the players don’t have First Amendment protections against the NFL when it comes to their protests. Does this mean that should be the end of the conversation when it comes to protecting these protests? Of course not.

Free speech is a constitutional right, but it’s also a integral part of U.S. society as a concept. It is important that we voice our support of their message and protest. Private companies like the NFL aren’t required to comply to the rules of the First Amendment as private people and companies have their own rights to free speech. However, a right to free speech is not a right to freedom from consequences for your speech and choices regarding speech. If it is known that coming down on these protests will result in public condemnation, the teams will be hesitant to take action.

The teams are the ultimate arbiter of how these protests will be treated. However, these teams are ultimately accountable to their supporters as the lynchpin of their business–that means your support is crucial to helping the athletes who have chosen to use their fame to send an extremely important message to the world.