The NAACP’s interim president Derrick Johnson is requesting a formal meeting with NFL commissioner Roger Goodell to the failure of any team to pick up Colin Kaepernick and how the NFL will honor his “constitutional rights” and those of other NFL players. I have said previously that I strongly disagree with the decision of Kaepernick and others to refuse to stand during the national anthem. However, I fully accept the first amendment right to carry out such protests. However, the question is far more complex when moved into the realm of employment and demonstrations at work. The question becomes less a constitutional matter than an employment matter.
In the letter, Johnson accused the NFL of “blackballing” Kaepernick, who is often booed by fans who view his protest as disrespectful of the country’s values.
Last season, Mr. Kaepernick chose to exercise his First Amendment rights by protesting the inequitable treatment of people of color in America. By quietly taking a knee during the national anthem, he was able to shine a light on the many injustices, particularly, the disproportionate occurrences of police misconduct toward communities of color. As outlined in your office’s public statement, this act of dissent is well within the National Football League’s stated bylaws. Yet, as the NFL season quickly approaches, Mr. Kaepernick has spent an unprecedented amount of time as a free agent, and it is becoming increasingly apparent that this is no sheer coincidence.
“No player should be victimized and discriminated against because of his exercise of free speech — to do so is in violation of his rights under the Constitution and the NFL’s own regulations.
We have previously discussed the issues of free speech and privacy within the realm of employment. The first amendment protects citizens against censorship from the government as opposed to private parties. The latter is more of a “Little Brother problem.” Employees generally do not have the right to use their workplace for political statements or protests. They are hired to perform a task and such protests can have a significant impact on customers and business. When someone goes to Starbucks, they want a coffee not a controversy.
Having said that, the national anthem is viewed by Kaepernick as a type of forced political speech in favor of a national symbol that he associates with the oppression or abuse of African Americans. In the public school setting, the Court has recognized the constitutional right of students to refuse to recite the pledge of allegiance. Standing for the anthem is heavily laded with symbolism — indeed that is precisely why people are upset. That certainly makes this controversy a closer issue but not, in my view, a determinative one. Employers generally have a right to bar players from using games to carry out a political protest.
Adding to the difficulty for asserting a constitutional violation against Kaepernick is the fact that he is not a particularly good player. According to ESPN, he was one of the league’s least-accurate quarterbacks in the NFL with a dismal 60.1 completion percentage — ranked No. 23 in the NFL. His percentage of off-target throws — judged on video by ESPN Stats & Information — ranked No. 18 (17.6 percent). Accordingly he brings much controversy to games but not an equal amount of talent.
Thus far, the NFL and owners have not stopped players from protesting at these games despite the majority of fans who object to the demonstrations. However, when firing decisions are made, teams make a holistic judgment on what a player can offer to a team in both of talent and controversy.
In the end, I still do not appreciate these protests. The flag and anthem represent the values of a country that has not always lived up to our beliefs. We remains a nation with deep racial and social problems, but the anthem reflects a commitment to work through those problems together. It represents a constitutional system that has had many triumphs in the fight for equality from desegregation to voting rights to anti-discrimination laws. Standing for the anthem reflects our mutual support for those ideals despite the fact that we have not always down the most to maintain them.
The allowing players to protest raises some difficult questions for the NFL. Would the teams feel the same way if players took a knee to oppose immigration policies or the other issues? When benefit of a ban on protests during the anthem is to avoid a slippery slope where teams have to decide what protests will be allowed and what will be barred. At the moment, the NFL appears to be saying that you can refuse to stand for any reason.
What do you think?