Catching Straws: Democratic Members Call For Impeachment For Trump’s NFL Comments and Other Controversies

300px-National_Football_League_logo.svgdonald_trump_president-elect_portrait_croppedBelow is my  column in the Hill newspaper on the continuing controversy over President Donald Trump’s remarks over the NFL anthem protest. including the suggestion that his remarks could constitute a case for impeachment.  I wrote earlier that the coverage over the anthem protests have been criticized with cameras notably redirected when boos were heard from the crowed. Indeed, yesterday morning, I watched CNN cover the controversy and say that at a particular game there was “both cheers and boos.”  However, when they cut to the clip there was overwhelming boos and the reporter admitted that the fans have clearly “not gotten the message” of the players.  It does concern me that, again, the coverage seems weighted in downplaying the polls showing that most people (including myself) do not approve of the protesting of the anthem and raising of the flag. As I have previously written, this does not mean that we have fulfilled those values, but rather that we remain joined by a common article of faith in freedom and equality.

Most citizens seems to have a balanced view that they do not approve of the failure to stand for the anthem, but recognize that the players have the right to protest (unless owners decided to enforce the earlier policy of showing respect for the anthem). In the meantime, the owners have shown that they are only concerned with profits and, with Roger Goodell, are desperately looking for a way to threat a needle without an eye-hole.  They are trying every variation, including the Packers standing arm in arm or the Steelers just not coming out of the anthem.  It is clear that neither side is buying it and the only agreement of many people on both sides is a common contempt for Goodell and the owners.

 

Here is the column:

 

Hammer_ball_paneNailsCloseupThere is an old adage that “if all you have is a hammer, every problem looks like a nail.” For some Democrats, it seems like impeachment is their only tool in dealing with President Trump. That makes every objectionable comment or act by Trump an impeachable offense. The latest example came from Rep. Al Green (D-Texas), who has decided to file a resolution in the House of Representatives for impeachment after Trump called for players kneeling during the national anthem to be fired.

While Green’s effort is viewed as unlikely to garner much support, we have had increasing calls for impeachment and, more ominously, arguments that impeachments may be properly based for any reason supported by enough members. Under that standard, most recently advanced by Rep. Maxine Waters (D-Calif.), opposing anthem kneelers would easily satisfy the constitutional standard, since there would be no standard.

In a speech before the Congressional Black Caucus town hall, Waters criticized other Democrats for failing to move aggressively for impeachment. She said, “Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.” In so saying, Waters dismissed the constitutional obligation to find “high crimes and misdemeanors” in assuring supporters that they can simply get rid of Trump on a muscle vote. In 1970, when Gerald Ford was still a member of the House of Representatives, he said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be.”On a very superficial level it is a political decision in the sense that it’s a decision that is ultimately made by politicians. However, that does not make the basis for decision purely political. It is akin to saying that, since a priest can grant absolution on his own authority, sin is a discretionary pastoral question. The Framers struggled to establish a standard and process to make impeachment both difficult and substantive.

That danger is more than evident in Green’s use of the NFL controversy. Trump caused an uproar at a recent Alabama rally when he asked, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b—h off the field right now?’” That was it for Green who was watching the rally live. He said, “This is not just another person. This is the president of the United States of America stifling free speech, and he does it in such a crass, rude, crude and unrefined way. To label a person who is peacefully protesting, label this person the son of a dog? No way.”

But Trump is also a citizen with free speech rights. Indeed, presidents have long viewed their function as speaking to the values of the nation. More importantly, “stifling free speech” through the exercise of free speech is a curious concept, and it is a dangerous concept as a basis for impeachment. Trump was expressing his view on the meaning of these protests and objecting to their appearance at professional sporting events. One can certainly disagree with that view, but it is his view, and he has a right to express it. Yet Green said, “These comments about free speech, which is something I cherish, they have caused me to conclude that now is the time to let the world know that there is at least one person in the Congress who believes that the president has gone too far.”

When Green says he cherishes free speech, it is hard to tell if he cherishes the message or the act. If Green is correct and all protests should be allowed, would he also support protests in private workplaces by racists or other hate groups? Even if the same protections for free speech were extended to private companies, the president exercising free speech would not be viewed as a form of censorship, regulation or criminalization of speech. If we were to accept the oxymoronic concept of “anti-speech” speech, most presidents would be guilty of the offense in denouncing certain groups or forms of protests.

In reality, the players do not have a constitutional right to protest in their workplace, any more than other employees. The owners of the team could bar protests as a condition for employment as disruptive to the games and inimical to their business. (Indeed, the NFL has a rule that players during the anthem must “stand at attention, face the flag, hold helmets in their left hand, and refrain from talking” or face discipline. That does not, however, appear in the 2017 version of the NFL official playing rules).

Some like Dallas Cowboys owner Jerry Jones clearly do not object to the protests and even joined in kneeling during the anthem with the players. However, it remains the choice of the company. The First Amendment was designed to protect against government restrictions on free speech. Otherwise, businesses could not prevent employees from giving you a lecture on socioeconomic inequalities before handing over your coffee or dry cleaning. Most customers are looking for a latte, not a lecture, at Starbucks.

Nevertheless, Green not only believes that Trump’s NFL comments were the last straw, he insists there were “many, many things that could have been the straw.” Indeed, if you accept the expression of values as impeachable, impeachment becomes simply a matter of pulling “straws.” While Green would not say that the criticism of Trump was racist, he said, “Whether something is done by accident or design, it’s the effect that matters greatly. Whether it’s being done with malice, aforethought or no thought at all, the harm still persists.”

So there you have it. Green appears entirely unconcerned (as does Waters) with the implications of reducing impeachment to such visceral and fluid determinations. He insisted that “history will vindicate” him. Neither Green nor Waters should wait for “vindication.” History has already answered this call for impulse-buy impeachments. The Framers saw the great abuses caused not only by tyranny of nobility, but tyranny of the majority. They sought to insulate our government from the transient impulses of politics. Otherwise, impeachment becomes little more than grabbing any opportunistic excuse for impeachment like so many “straws” in the political wind.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

212 thoughts on “Catching Straws: Democratic Members Call For Impeachment For Trump’s NFL Comments and Other Controversies”

  1. When Dennis Miller had his radio talk show and someone would bring up the NFL, he would always suggest to follow the money, the NFL is concerned with only one thing, money. So, expect no change until it effects their pocket book.

  2. Nick – did you see the mass shooting at Mandalay Bay? I am in total shock. What the F is WRONG with these people? Can’t they just kill themselves?

    1. Autumn, The sh!tbird did kill himself as cops got close. Too bad he didn’t do it a couple hours earlier. He is a 64 year old w/m w/ not criminal record. The MSM are praying he’s a Trump voter. Well, they’re not praying because they’re atheists, but you know what I mean. However, it was a country music festival so you know for whom most of the victims voted. The guys brother says no warning signs. Autumn, if I have learned anything about people it is we ALL have a dark side. ALL of us. This guy apparently hid his dark side well.

      1. Nick,…
        The shooter is reported to be from Mesquite Nevada.
        I don’t know if there is any connection, but Mesquite is very close to the Bundy ranch, where the armed standoff over grazing fees occured.

        1. Tom, Good piece of info. His brother said the guy was retired and liked going to casinos to gamble and go to shows. We’ll find out soon enough. Just watch for the inevitable spin.

          1. It could be as simple as he turned into a degenerate gambler after retiring, lost everything, and went psycho.

          2. Nick – I suppose it is a little early for gallows humor, but maybe he just was tired of country Western music?

  3. The problem is easily solved by removing the anthem from sporting events.

    Yes, clearly it is a recruitment tool for the Pentagon because those who have an affinity for spectator sports are the most likely to take that fighting spirit into the military arena. Instead of the anthem, just put military recruitment tables outside of spectator sporting events so that those interested in signing up, have that opportunity. If this country has to resort to propaganda to recruit young folks into the military, then maybe the Pentagon needs to rethink it’s strategies.

    1. “Removing” seems to be the operative word by the alt left. “Removing” Civil War history is in blitzkrieg mode. Now, removing the National Anthem is apparently on the list. Perfect!

        1. I had some apple pie last night. It’s apple season here. “They will have to pry my apple pie from my cold, dead fingers!”

        2. Obama continues “fundamentally transforming” America.

          Now you know why the Founders required that the president be a “natural born citizen,”

          to place a “strong check” against foreign allegiances by the commander-in-chief.

          * Jay/Washington letter, July, 1787
          * Franklin/Dumas letter Dec., 1775
          * Law of Nations, 1758, Vattel, Book 1, Ch. 19, Sec. 212

      1. Yea it’s always take stuff away from people that aren’t doing anything wrong because a handful of morons “F” it up for everyone else.

  4. Turley’s right about this one. Trump’s comment about the players’ protest is not an impeachable offense. Somebody needs to persuade Rep. Green not to lay his resolution upon the table. I seriously doubt that there would be any impeachment hearings convened on such a risible resolution. Why can’t we wait for something substantial, credible, clear and convincing? Mueller’s mulling about as fast as a muller can mull. Please give Bobby Three Sticks more time. Please?

    1. Rep. Al Green intends to introduce a “privileged resolution” for impeachment in the House.
      I had to look it up….it means House members have to put the resolution up for a vote.
      There’s far too little humor on politics today, so I hope Rep. Green goes through with his proposed resolution.
      Ought to be entertaining to watch it on C-Span.

      1. Rep. Green said earlier today that, due to the Las Vegas shooting, he was postponing his impeachment resolution.
        I was going to keep an eye on C-Span or Comedy Central this week for coverage, but Green supposedly will re-schedule his impeachment resolution at some undisclosed future date.

      1. Clinton was disbarred, Jim Guy Tucker convicted, and Webb Hubbell went to prison. Susan McDougal cooled her heels in jail for 18 months rather than testify (with immunity) in front of a grand jury; makes no sense if her testimony was innocuous.

  5. There are rules for peoples demeanor and behavior on the job. Those rules are more stringent when you wear a uniform. We are seeing a culture war between elitists and just regular folk. I know black people who hate this protest. A couple are cops, army vets. This isn’t black v white. This is elitist v regular folk. The condescending, smug news conference by the elitist Cal/Berkley Aaron Rodgers after the Packer/Bear game on Thursday encapsulated it. I’ve been to many Green Bay games. The fans are down to earth, nice, albeit drunk, people. Talked w/ a guy who has season tix and was there. LOTS of boos and chants of USA.

  6. Trump is holding a discussion on traditional American values and the Left hates it. For too long, the radicals and their propaganda wing, the legacy media, had it their way. Cowling members of Congress and the President with threats of bad press for even the slightest support of America First. It’s coercive globalization with corporations in the lead and all in pursuit of cheap labor. To accomplish this, our right to speak out/complain must be eliminated. Trump took all this on and you can see the results. For all his doltishness, Trump is on the right side here. And many Americans are coming to see that. Boycott our corporate overlords starting with the No Fans Left league. It’s really pi$$es them off when we deny them our money.

    1. You’re correct in assessing that Trump is on the right side here and it will probably be 50 years from now that people will look back and say “Damn Trump was right about all of the crap that was going on back then”.

  7. We are living in a very sick society.
    The Left wants to prolong this hatred.
    The NFL owners are spineless.
    Maybe soccer is an alternative.

  8. Maybe if we acknowledge the issues for which they are kneeling… Maybe if we brought those issues to another forum, in earnest… Maybe they would stop kneeling.

    I think Jonathon is making the point that these rules would be up to NFL or the owners to enforce. But I think it’s beyond that now.

    1. Maybe if we acknowledge the issues for which they are kneeling…

      The rubbish peddled by the sorosphere rent-a-crowd has received 10x the attention it actually deserved. These are protests in service to a cause based on social fiction.

    2. What issues are they protesting, they don’t seem to know anymore? It started with Kaepernick protesting that police were shooting blacks disproportionately to whites which has been proven wrong with a little statistical research. Then it became hire Kaepernick back. Now it seems to be “we don’t like that Trump thinks what we are doing is inappropriate”. So it started legitimately, even if misinformed, but has devolved into just a bunch of whining. So if we want to have a dialog they must speak clearly and precisely what it is they seek that will cause them to say “Oh, everything is better now let’s get back to playing a game”.

  9. Odd, you avoid listing the Fox channel for its blatant “misinformation” not showing what you feel should be the proper camera angle is nonsense. With all the problems on the present horizon and you go after a camera angle. I have bigger things to worry about than some “beltway” dweller clamoring about the NFL’S player protest.

    1. I have bigger things to worry about than some “beltway” dweller clamoring about the NFL’S player protest.

      Well aren’t you a saint for stopping by to give us a moment of your time and share the last remaining piece of your mind. Good luck with those bigger things.

  10. The players weren’t even on the field until 2009 when the DoD paid millions of dollars to the owners for the players to promote “patriotism” to encourage enlistments

    When the President speaks to prevent others from speaking, he is violating the first amendment rights of those he is attempting to censure.

    It’s interesting that we aren’t hearing so much about the several members of his senior staff who are using their own email accounts in their jobs, nor much about the Russia investigation. We weren’t hearing much about the devastation in Puerto Rico until days after the hurricane. He considers his racist tweets to be a success. I wonder why.

    As to the protest itself, Rosa Parks wasn’t protesting transportation, those sitting in at the food counters were protesting the food, and those taking a knee during the national anthem (with its racist lyrics) were protesting a song. (They aren’t but I did when I was in school and still do. Actually, it wasn’t the song itself but the war it glorified)

    1. Bettykath:
      It’s hard to believe you’ve got so much factually wrong in one small comment. For starters NFL players have been on the sidelines for decades during the anthem and weren’t paid to start in 2009. Even snopes owns that: http://www.snopes.com/nfl-sideline-anthem. The President is not violating the 1st Amendment when he speaks to prevent others from disrespecting. In fact, he’s validating it. We don’t hear much about the private emails because they were disclosed and nothing was deleted. Hillary wishes she could say that. As for Puerto Rico, I’ve heard nothing but that for days starting when the first palm tree rustled with a stiff breeze. And most of that was that twit mayor blaming Trump because her truck drivers were on strike during a natural disaster. Trump’s a racist like the Emperor has new clothes. I’ve give you this: you’re consistent,

      1. When the Chief executive threatens the jobs of people who are exercising their free speech rights, he is over the line.

        “In 2015, Arizona Sens. Jeff Flake (R) and John McCain (R) revealed in a joint oversight report that nearly $5.4 million in taxpayer dollars had been paid out to 14 NFL teams between 2011 and 2014 to honor service members and put on elaborate, “patriotic salutes” to the military. Overall, they reported, “these displays of paid patriotism [were] included within the $6.8 million that the Department of Defense (DOD) [had] spent on sports marketing contracts since fiscal year 2012.”

        As to consistency, so are you. And it’s disappointing.

        1. wow, surprised McCain was a part of that report – the NFL lobbyists must not have given him $$

        2. You obviously read the part you liked. Here’s the rest:

          “[T]he connection between “paid patriotism” and players being mandated to be present for the anthem is tenuous. The report does mention several instances where teams were paid for anthem performances, but that was about the specific artist or presentation. There is nothing in the report to suggest teams were paid or coerced into pulling players on to the field as part of “paid patriotism” initiatives.

          In fact, Pentagon spokesman Army Major Dave Eastburn recently clarified the Defense Department’s current relationship with professional sports.

          “DoD does not require or request that athletes be on the field during the playing of the national anthem when military members are part of the patriotic opener,” he said in a statement to CNN”

      2. It’s hard to believe you’ve got so much factually wrong in one small comment.

        Bettykath’s signature is a recitation of fantasy.

      3. Mark,

        Washington has a law that addresses situations similar to what these truck drivers created:

        RCW 49.44.080

        Endangering life by refusal to labor.

        Every person who shall willfully and maliciously, either alone or in combination with others, break a contract of service or employment, knowing or having reasonable cause to believe that the consequence of his or her so doing will be to endanger human life or to cause grievous bodily injury, or to expose valuable property to destruction or serious injury, shall be guilty of a misdemeanor

        1. A lot of people are blaming the disaster in Puerto Rico on Trump but here is some information regarding sending supplies to the needy in Puerto Rico.

          “There has been no shortage of Federal aid to Puerto Rico. There are tons of supplies sitting and rotting. There are 10,000 shipping containers in a San Juan port alone. The dysfunctional local authorities were having trouble finding the drivers to deliver them.

          The Governor of Puerto Rico has said that he doesn’t need more supplies. He needs drivers. And, currently, only 20% of the truck drivers are reporting for work. Meanwhile fuel trucks can’t travel because of a curfew.

          Is that Trump’s fault?”

          The Democrats created the problem in Puerto Rico, in New Orleans when Katrina hit, and in other disasters preceded by leftist governments that refused to make conditions safer for the future. The left and the media have lied about this disaster and others that Trump has managed exceeding well.

          A similar law to RCW 49.44.080 would have made it more possible for the supplies sent to actually reach their destination.

          For more

          http://www.frontpagemag.com/fpm/268026/how-democrats-set-puerto-rico-disaster-daniel-greenfield

    2. As to the protest itself, Rosa Parks wasn’t protesting transportation, those sitting in at the food counters were protesting the food, and those taking a knee during the national anthem (with its racist lyrics) were protesting a song.

      I won’t retread mespo’s post, he covered that well. But you apparently don’t understand the difference between a customer expressing their 1st amendment rights and an employee. Rosa Parks and the lunch counter protestors were customers in the same way ticket holders and TV viewers are customers of the NFL. And for the umpteenth time, they aren’t protesting the anthem. They are protesting during the anthem. And I seriously doubt most of them are protesting anything, they are likely standing in solidarity with another athlete.

    3. I don’t think you’re correct about 2009, I remember watching players standing for the National Anthem back in the 60’s. And the rule book has a section that states proper National Anthem etiquette which was there long before 2009. And you’re devolving into all of your grievances about Trump, I didn’t realize this article was about PR, Russia, etc. When racism is the only tool you know how to use everything starts to look like racism, tell me one thing involving this protest that Donald Trump has done that is racist.

  11. “In reality, the players do not have a constitutional right to protest in their workplace, any more than other employees. The owners of the team could bar protests as a condition for employment…”

    —————-

    The owners are allowing these protests to continue when they could have been stopped on day 1. The players do not have a 1st Amendment right to do this while on the job, in uniform, on the field. Too bad most of the media continue to say that the player’s have a right to express political speech in the workplace when they do not.

    And the worst part is seeing NFL players on their knees for our anthem while in London, but then rising for God Save the Queen. That is a disgrace. And today seeing some Cleveland Browns players raise clenched fists in the air was too much. So the NFL is going to join ESPN in being all political all the time? I will not be watching.

    1. TBob – I am glad to see the Black Panthers make a comeback. Although, as I have told several people, I think their focus is wrong.

      1. Paul, everytime I hear anything about the Black Panthers I immediately think about Tom Wolfe’s hilarious story about Bernstein hosting them. Wolfe is one of my fav contemporary authors – I hope he has at least another novel in him…

        http://nymag.com/news/features/46170/

        1. Autumn – Bernstein must have been sleeping with one of them. 😉 He was an extreme leftist politically and hosted lots of parties to raise money for Socialist, Communist or semi-Communist causes. He was also a great director and would not have been allowed to write West Side Story under any cause he supported. Or live the lifestyle he enjoyed in NYC.

          I think there are pictures in some magazine of the party you are speaking of. I remember the uproar it caused on the right.

      2. They’re back. They were the first to call cops ‘pigs.’ What about their focus is wrong?

        1. TBob – they should be focusing on who is doing most of the black-on-black killing, which is the major problem. If they would concentrate on getting rid of the Crips and Bloods, they would have my full support. 🙂

    2. The sad part s that these ignorant idiots don’t realize that the African slave trade started under the Union Jack and “God save the Queen”. More people of color have been subjugated and oppressed by the British empire, than have likely ever lived in the United States.
      Unfortunately, the NFL players and too large a segment of black America, are being used as not-so-useful idiots. Even the original protest is based on faulty data at best.
      “Hands up, don’t shoot” was a lie. Don’t take my word for it, ask Obama’s AG, Eric Holder. It appears that the racial profiling and arrest of Michael Bennett by “white cops” in Las Vegas, was also a lie.

      You can’t build a house of justice on a foundation of lies.

      1. ti317 – the African slave trade in the New World was started by the Portuguese who needed workers for Brazil. The Dutch may or may not have been the ones who first brought slaves to the British colonies. When the British got into the act, they showed everyone exactly how a business should be run and made it a lot more efficient. In fact, the British slave trade was one of the original complaints of the Declaration of Independence, but they took it out of the final draft.

      1. Thanks Nick!! I try to keep it real and avoid partisanship. Credit when credit is due and likewise criticism. There are some great independent media folks out there on all sides of the “spectrum” and I thoroughly enjoy their videos. Vive le (la?) YouTube! =)

        1. Those Ruskie writers on FB thought they were smooth too when they pretended to be warm and fuzzy progressives.

  12. Not watching the NFL these days but from several news stories tonight it seems the fans hate the players’ protests and support President Trump on this issue . Fans are burning NFL jerseys , GB Q back was booed for his supporting the protest even though it wasn’t even kneeling. There is a lot more patriotism out there than I thought.

    1. That is not patriotism.

      “My country right or wrong. When right to keep it so; when wrong to make it right.”

      Just now some wrongs are being recognized.

    1. Turley argued that the players have a right to protest, if their employers permit them to exercise that right on the job in the workplace. Of course, he then found fault with the owners for allowing the players’ protest to continue. So . . . You may have a point, Mr. Benson.

      I wonder if public workplaces are somehow different than private workplaces. If the employees are being paid to provide a spectacle for the entertainment of their employer’s customers, then might the employee’s conduct be “expressive” and, thereby, protected by The First Amendment?

      1. “If the employees are being paid to provide a spectacle for the entertainment of their employer’s customers, then might the employee’s conduct be “expressive” and, thereby, protected by The First Amendment?”

        Only if said customers want to hear their First Amendment rights exercised.
        I seem to recall a player was fined for not being available for media Q&A before the super bowl, wasn’t that infringing on his 1st Amendment rights.
        Let’s be honest here it’s not about their voice, it’s about the vehicle chosen to deliver the message (I’m being generous here because the “message” has become pretty vague).

        1. Ed Leax, I see your point. However, since I’m not a lawyer, I will now exploit the vagueness of my question to side-step your otherwise excellent legal reasoning.

          Suppose . . . [uh oh] . . . we drew an analogy between The NFL players’ protests and the Shakespeare in the Park production of Julius Caesar to which Donald Trump Jr. so vehemently objected.

          Would the NFL players’ protests enjoy the same expressive speech and expressive conduct protections afforded the Shakespeare in the Park company?

      2. Late4Dinner:

        The analysis for public versus private employees is different. In the private setting there is very little an employer can’t do to suppress free speech if it chooses. In the public sector, the issue is over-arched by the First Amendment which limits the government since it’s employees are typically covered by the First Amendment especially when working “in country” so to speak. However the protections of the First Amendment are limited in cases involving matters not of “public concern.” Here’s a set of tests published by Professor Doug Linder at the Univ. of Missouri (KC) School of Law.

        “Testing Whether the Government has Violated the First Amendment Rights of Employees
        1. Is the employee on the government payroll? (If not, the First Amendment generally will not apply and the employee will be left to contractual or statutory remedies (e.g., “whistleblower” law), if any.)

        2. Has the employee been punished for his or her speech in a non-trivial way, such as being discharged, demoted, or transferred? (If not, the courts are unlikely to consider the First Amendment claim.)

        3. Did the expression for which the employee was punished relate to a matter of “public concern?” (If not, “absent the most unusual circumstances” (Connick), the courts will not consider the claim. Courts should look at the “whole record” to determine whether the expression concerns a matter of interest to the general public. Whether expression relates to a matter of public concern does not depend upon how it is communicated–whether privately or publicly.)

        4. If the government says that it had additional reasons for punishing the employee that do not relate to the employee’s expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered? (Unless the expression on a matter of public concern was a “but for” cause of the punishment–but for that expression the employee would not have been punished as he or she was–the employee loses on the First Amendment claim. The government, however, has the burden of proof of showing that the other reasons would have produced the same punishment. Doyle)

        5. If the employee’s speech did relate to a matter of public concern, is the government’s ability to “efficiently provide services” nonetheless adversely affected in a substantial way, or does the speech negatively reflect on the employee’s job performance? (If so, the employee is out of luck.)

        6. Was the employee punished for speech that was pursuant to his or her duties as an employee? If so, the First Amendment will generally afford no protection to the employee. (Garcetti)

        7. With respect to political affiliation of public employees, the Court asks whether party affiliation is an “appropriate requirement” for the position, taking into account such factors as whether the employee makes important policy decisions or is in a position to thwart the policy directives of superiors. If not, the First Amendment prohibits consideration of political affiliation in either hiring, promotion, or discharge decisions (Branti, Rutan).”

        http://law2.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm

        1. Thank you, Mespo. I had no idea where that question might lead. It looks like the test questions apply to public employees–meaning government workers. That’s not exactly what I had in mind when I posed the question. Poor word choice on my part.

          I’m pretty sure the last thing we need is Nationalized Spectator Sports.

          1. In re: Nationalized Spectator Sports: Where would the sovereign rights of the several states fit in?

            P. S. My question about public speech versus private speech was mostly based on an analogy to the issues raised by Jack Phillips in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.

            Phillips–the self-employed owner of the cakeshop–claims that his cakes are works of art that involve expressive speech and expressive conduct that are protected by The First Amendment against applications of Colorado’s public accommodation laws that would compel him to celebrate public ceremonies [same-sex weddings] to which he has religious objections.

            The analogy is weak on the facts; but the issues might carry over to the NFL players’ protest, anyhow.

  13. “(Indeed, the NFL has a rule that players during the anthem must “stand at attention, face the flag, hold helmets in their left hand, and refrain from talking” or face discipline. That does not, however, appear in the 2017 version of the NFL official playing rules)”

    If a “rule” doesn’t appear in the official playing rules, is it still a rule?

    1. enigma – it was in the 2016 manual but doesn’t appear in the 2017 manual. Did someone leave out a paragraph?

      1. Did someone eliminate the rule? Doesn’t the current manual supersede all previous ones? In a court case would the NFL prevail trying to enforce a rule they accidentally left out?

        1. enigma – I am not sure what the deal is with the manual. I would think if the section is missing, it is unenforceable. However, there is a boilerplate section of every player’s contract that says they can be fined for acts detrimental to the NFL. That can certainly be enforced. If people are not showing up at the stadium that means fewer beers sold, fewer hot dogs, fewer parking passes, etc. That loss of revenue is detrimental to the NFL. I saw an interview with a woman who owned a clothing shop that specialized in professional sportswear from Pittsburg. They were dead. The only guy in there was buying a Penguin jersey. 🙂

          Now the commissioner’s office sent out a dictate this week to all the teams that all players and coaches stand during the National Anthem. The question now is, does Goodell have the intestinal fortitude to fine the few who didn’t or is he going to let them ride? There is now a film of every game, so you have everyone on film.

          1. Paul, Goodell and the head of the players’ union have already stated on record they don’t have the power to force the players to do anything. I doubt anyone will get fined over this…..the NFL is not being managed at all. Goodell is a corrupt moron, and apparently none of the lawyers or PR “experts” at HQ is smart enough to figure out how to handle this.

            http://www.espn.com/espn/otl/story/_/id/20865444/inside-story-happened-players-took-control-nfl-national-anthem

            1. CCS, temporarily setting aside the corruption issue, is The NFL still legally structured as a “franchise”?

              Or did the advent of televised football games change the franchise arrangement, somehow?

              1. Late, sorry, that’s above my pay grade as I am not a lawyer, let alone a contracts lawyer. The teams are franchises, and each team even has one “franchise” player, which I mention only to show how widely the term is used. I don’t know how revenues from Tv contracts are distributed. No doubt there are knowledgeable posters on here who can opine.

          2. BTW, I saw the same interview with the woman owner of Steel City Sports. IMO, it only shows how hateful and idiotic some Americans are that they deemed it acceptable to go to her store/call her up/post on SM to blame her for what was going on in the NFL and then to tell her they would never shop at her store again. The poor woman is not to blame for Coach Tomlin and his players handling the situation poorly.

            1. CCS, in re Steel City Sports what you describe sounds like a secondary boycott. Although, I have no idea who the poor woman who owns the store might sue to get an injunction against such a secondary boycott.

              1. Yeah, I don’t see a lawsuit being a viable option. You cannot make people buy your stuff, although I’m sure some USians would like to find a way. 🙂

          3. I don’t see this issue fading away quickly. Any action taken would be challenged in court. The question about the ability of the league to force political speech would be challenged. Even if there were a general willingness of the players to reach an agreement, the President would make it impossible for the players when he would inevitably make it look like the players bowed to him which is an untenable position for the players.

            Game revenues were already declining, in my opinion to oversaturation and other issues. I personally have worked with merchandise at regular season games for the Dolphins, Browns, and Jaguars and at 11 Superbowl’s. Game-day in stadium sales during the regular season are nothing special compared to say a concert. Playoff and Superbowl sales are much better because if exclusive merchandise like the “Stadium Collection” sold at Superbowl’s and available nowhere else except some hotels in the host city and the NFL Experience, handled by the league’s merchandiser, Facilities Merchandise, Inc. (FMI).
            Should the leagues actually fire players, there will be organized protests and this will become a contract issue. In my opinion, if Trump were silent, this would have already passed over.

        2. The Rule is found in the NFL’s Game Operations Manual which is a governing document whose violation by clubs can lead to fines and suspension. It’s not in the official document known as “The NFL Rule Book.” Thinks statutes versus regulations.

  14. It seems like we people should have the ability to recall a president much as we’re able to recall a governor, for example, governor Mecham in Arizona in the late 80s.

    1. Don,…
      I think Gov. Mecham was impeached by the AZ. House, and resigned before a Senate trial.
      The (same) 50% House majority to impeach and 67% Senate majority to convict are required in Arizona and at the federal level.

    2. Don – Mecham was impeached, not recalled. Although there was talk of a recall, still you need to get your Arizona history correct. 😉

      1. Paul C. Schulte,…
        The Mecham recall petition easily got enough signatures to force a recall election.
        The impeachment process forced him out before the scheduled recall election, but I’m not sure if Mecham resigned before a Senate trial (as I stated earlier).
        He may have played it out to the bitter end with a Senate conviction.

        1. Tom Nash – Mecham was convicted by the Senate, I do not remember if they got enough valid signatures or not. He ran for governor again in 1970.

            1. Tom Nash – he lost. He really wasn’t in the running. He tried to get his newspaper going again but it folded before the first copy was printed. He was a successful car dealer.

              Like Trump, though, they were looking to impeach him before he got into office. Poor guy never had a chance. He was an outsider who got elected and they made sure he didn’t stay elected.

    3. It seems like we people should have the ability to recall a president much as we’re able to recall a governor, f

      Very few states have recall provisions and they’re properly restricted to those serving distended terms whose mundane asininity is generally unknown to the public until their egregious qualities are exposed unexpectedly. Recall judges, not mayors.

  15. The Democrats have to stir up their base. Things are bad for them in the rest of the country regardless of what Nancy Pelosi says. Jeff Flake is 25 points behind his primary challenger and he is losing ground rather than making it up. Dr. Kelli Ward will likely be the new Senator from Arizona. Over half of Diane Fienstien’s constituents want her to retire. God only knows how many want Pelosi to retire?

    1. Paul the Dim base is a bunch of Hilbot cultists which is why so many people have left the party. Tulsi Gabbard should be a shining star but they despise her.

  16. These loser Dims who are finally being called out and challenged by their former base (Demexisters) can only deflect. How about they start cleaning out the corruption in their own damn party? HRC, DWS, Awan bro and on it goes. They are losing their power and flailing about searching to place blame and for scapegoats. Like the aristocrat of old their days are numbered. Between old school conservatives and real progressives who may not agree on all issues one thing they have in common is exposing corruption. And this is a powerful mix of people who may drain the Swamp – at least a few of ’em.

    1. Don’t forget NJ Democratic Sen Bob Menendez’s corruption trial. He’s going to jail. But you wouldn’t even know the trial is going on right now b/c wall to wall news coverage is reserved only for Republican corruption trials.

      1. Good point, TBob. Menendez is one of the sleaziest politicians in DC. And he has a lotta competition.

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