The National Association for the Advancement of Colored People (NAACP) has Cowboys owner Jerry Jones saying that any players who protest during the anthem will be disciplined and not allowed to play. The NAACP has denounced the policy as “unconstitutional.” While one can certainly disagree on the merits over the protests, teh NAACP is wrong on the constitutionality of such a policy. An employer can clearly bar political protests during work hours. Moreover, the First Amendment is primarily directed to limiting government interference or regulation of speech. While a public university qualifies as a state actor, it does not necessarily mean that protests are protected. Even on college fields, school are giving considerable leeway in setting such rules, including the recent dismissal of a college quarterback for kneeling.
“I want [the players] to have the ammunition to tell anybody that asks them to do anything otherwise or demonstrate during that period of time, that ‘I don’t get to play if I do that. This is a workplace issue. I don’t want there to be any misunderstanding as to where I want the personnel of the Cowboys to be when we’re at the No. 1 workplace we have, which is the field and the sideline on gameday. I want to do everybody a service, as I should in leading the team, and let’s be really clear about what our expectations are.”
I have been critical of the protests but the ultimate decision of what occurs at a private business in terms of political protests is left to the owner. Notably, the owners only recently began to suggest the enforcement of the long-standing policy that no protests are allowed during the anthem. 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. Now, as both attendance and viewership continues to fall (in part, according to polls, due to the protests), the owners appear to be changing their initial decision. As always with Roger Goodell and the owners, there seems little principle but a lot of profits in the mix on this decision. Goodell has repeatedly shown an insatiable desire to squeeze fans and sponsors alike for any profits, even as fans have left the game in droves. Now that money is at stake, the owners are suddenly calling for the respect of the flag. It is reminiscent of the scene in the Goodfellows where Pesci explains it always comes done to the dollars, “Always the dollars.”
However, while the motivation may be questionable the means is not. It would be bizarre if business owners could not prevent employees from protesting in the work place. Customers go to Starbucks for frappuccinos and fans go to the NFL for football.
Nevertheless, Tony Covington, a former NFL safety and an executive with the NAACP, declared “Jerry Jones’ comments are more than tone-deaf, more than misinformed and misguided — they are a public commitment by an NFL owner to violate his players’ Constitutional right to free speech — one of the principles on which our nation was founded.”
If NAACP pursues this as a constitutional matter in court, they will fail. The best option in such cases is a contractual claim but the NFL rules establish the right of owners to dictate such conditions. Neither the constitution nor the contract is likely to support the right of employees to engage in protests during games in my view.