No, NFL Players Do Not Have A Constitutional Right To Protest During The National Anthem

The_Star-Spangled_Banner_-_Project_Gutenberg_eText_21566Below is my column in The Hill newspaper on the calls for a constitutional challenge to the new NFL policy against protests during the National Anthem.  While many have  claimed that the policy violates free speech rights of the players, there is actually little support for such a challenge under constitutional law.  The best shot might be procedural in nature in arguing that the collective bargaining agreement requires conferral on such rules with the players. Putting aside the strong defenses to this claim, it would likely only require consultation and not a change in the ultimate policy.

Here is the column:

The new rule requiring NFL players to either stand for the national anthem or remain in the locker room has produced a firestorm of criticism. Sports Illustrated’s Jimmy Traina called for resistance against the “racist owners” and NBC’s Chuck Todd joined in portraying the policy as “un-American.”Rolling Stone’s Jamil Smith cast it as an effort to conceal reminders of “white supremacy.” A Washington Post column called for a challenge and declared, “There would be no NFL without black players.”

But the fact is that the NFL has every right under the Constitution to do what it did. Absent state laws to the contrary, any constitutional challenge would be like a “Hail Mary” without a receiver. No court will rule that employees of a private company have a right under the First Amendment to conduct protests at work against the wishes of their employer.

More than 50 percent of Americans are opposed to protests during the national anthem and support the new policy. Many fans boycotted games and NFL purchases over what they viewed as disrespect for the country. Others view this as a time-honored form of athlete protests, and some 32 percent oppose the new policy.

Ultimately, it is unlikely that the new rule was motivated by simple patriotism among NFL owners and NFL Commissioner Roger Goodell. Historically, the only thing unfailingly saluted by the NFL is profits, and these protests are cutting into profits. Even if much of the decline of viewership can be attributed to a variety factors, there is an obvious impact on sale and viewership.

In the end, it is actually a stronger case to argue the bottom line in defense of this policy than the patriotism of the owners. The NFL is a business dedicated to making money. It has determined that these protests are bad for business. Period. The First Amendment protects against government actions against free speech, not private companies like the NFL. Even if that were not the case, it is doubtful that a court would find the arguments of the critics particularly compelling.

If these critics are correct, employers could not determine how their businesses would operate vis-à-vis employees and customers. It would mean that a customer ordering a latte or a tire change might have to listen to a political diatribe or watch a protest for any cause of the employee’s choosing. If NFL players can protest police brutality, can they also conduct protests for “Blue Lives Matter” or pro-life causes? Could players carry out continual protests of different grievances, or would owners have to chose between worthy and unworthy protests?

The NFL rule still allows players to register their disapproval during the national anthem and the absence of players will not go unnoticed. There is no “compelled patriotism” since there is no compelled participation. Conversely, players could simply pay the fines. New York Jets owner Christopher Johnson has offered to pay the fines for his players.

In his Washington Post column, Shaun Harper, executive director of the Race and Equity Center at the University of Southern California, insists this is an abusive action by “a majority white group of overseers” targeting black athletes. He argues that those objecting to the protests are often hypocrites who express “the spurious outrage over alleged violations of freedom of expression on college campuses.”

Since I am one of those who have objected to the rapid decline of free speech on campuses, I would point out a rather obvious distinction omitted by Professor Harper: Students are not employees. If anything, they are closer to customers. They pay to go to colleges and universities to engage in intellectual pursuits that require free and open discourse.

A true education requires freedom of thought and expression, which are guarantees long defended by academics. That freedom is being heavily curtailed and often directed against conservative faculty and students. For public universities, the First Amendment applies, unlike within the NFL. In private institutions, there are contractual claims that can be pursued, unlike NFL players who agree to play by the rules set by the NFL.

While only “guidelines,” the NFL game operations manual states that the “national anthem must be played prior to every NFL game, and all players must be on the sideline for the national anthem. During the national anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking.”

The NFL rulebook itself directly bars political speech by players, such as “wearing, displaying, or otherwise conveying personal messages either in writing or illustration” which “relate to political activities or causes, other non-football events, causes or campaigns, or charitable causes or campaigns.” The new rule actually loosens that guideline.

The one contractual basis that could be raised would be the collective bargaining agreement between the players and owners requiring conferral on many issues. However, this is not a constitutional claim and the prospect of a successful contractual challenge is slim.

The critical missing element in any constitutional challenge remains state action. Strangely, President Trump seemed to rush to fill that void in a highly disturbing Twitter suggestion that protesting could have bearing on whether players should remain in this country. Rather than simply celebrate the reversal of the prior policy allowing protests, as he long advocated, President Trump stated, “You have to stand proudly for the national anthem or you shouldn’t be playing. You shouldn’t be there. Maybe you shouldn’t be in the country.”

Being a U.S. citizen means you have a right to protest. Just as critics often wrongly portray those objecting to protests during the national anthem as hostile or blind to racial inequality, it is equally wrong to suggest that protesting players are somehow lesser Americans. These players care about this country and are seeking to use their positions to raise awareness of an ongoing problem. That is what good citizens do in our national discourse. You simply do not have the right to protest anywhere at anytime in any way of your choosing.

In the end, it is not about good versus bad citizens, or even the meaning of our national anthem. The liberty is protected not only by constitutional inclusion but omission. Some questions are left by default to the state or the citizens. This is one of those cases. For better or worse, the ultimate resolution to this question will rest with the owners, players and fans.

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

265 thoughts on “No, NFL Players Do Not Have A Constitutional Right To Protest During The National Anthem”

  1. “Patriotism isn’t about making everyone stand and salute the flag. Patriotism is about making this a country where everyone wants to.” — a veteran

    https://www.bloomberg.com/view/articles/2017-09-25/dial-down-the-national-anthem-at-sporting-events

    From one of the comments to the article:

    “…forcing people to stand for it whether they want to or not is not patriotism. It’s nationalism. Or as one vet put it on twitter with great insight: “Patriotism isn’t about making everyone stand and salute the flag. Patriotism is about making this a country where everyone wants to.””

    1. The discussion doesn’t involve what is or isn’t patriotism. It involves highly paid athletes that work for businesses where the owners, whose money is at stake, have a right to protect their companies.

        1. Sorry, anonymous but the National Anthem represents America and that so happens to be where you live and where the games are played. It is up to the owners whether or not they wish such activities to occur and if they don’t the National Anthem will not be played. I am waiting to hear some fruitcakes telling our Olympic Committee to eliminate having our National Anthem being played when an American wins the gold while our American athletes have to listen when the Russian Anthem is played when they win the gold.

          If you don’t like the boss’s legal behavior find another job. He has to compete for employees just like employees have to compete for jobs.

          Tyler Cowen has his feelings as to when or if it should be played and I respect his feelings but they remain only as a suggestion. The employers determine what happens at the job site and the fans determine whether or not they wish to spend their dollars. Your opinion is welcome but has nothing to do with the law.

          1. Tyler Cowen’s ‘feelings’ are a function of luncheon discussions at the GMU Rathskellar. F__ the GMU faculty. IW

  2. Suppose a group of fans knelt or turned their back to the flag, or the male fans refused to doff their hats or the group refused to place their respective right hands “over their left breast area during the national anthem at an NFL game or any sporting event, in protest of some action or inaction of the Federal, State, County or Municipal government where the sporting event is taking place.
    Could they legally be forced to leave? Could they be arrested by Law Enforcement Personnel on duty at taxpayers expense? Suppose they are moonlighting but in their uniforms.

    1. Depending on alot of details they may or may not be able to be forced to leave.

      But it is HIGHLY UNLIKELY.

      A customer has to be really bad for a business to turn them down.

      We should never fret businesses turning down customers – because it is a self punishing act.

    2. It is not illegal, but is the owner of the stadium wanted you thrown out for that, sure you could be. ANY private biz can shut down or thro out anyone disrupting their production. Why is this so hard to understand? Can no one read the #1stA?

      1. I’m not a lawyer, but wouldn’t this depend on the admission ticket’s terms and conditions which one accepts in using the ticket?

    1. The narrow question of whether the NFL players’ protests constitute protected speech should not be allowed to eclipse the larger issue of prejudicial conduct by some people in law enforcement toward persons of color. The police must be able to do their jobs and have a right to protect themselves but an unwritten policy towards African Americans of shooting first and asking questions later must not be tolerated.

      I find it absurd that some people who vociferously defend respect for the flag are willing to tolerate the disrespect by the commander in chief to the American hero John McCain. At a recent rally, in Tennessee,, President Trump castigated McCain for his principled ‘no’ vote last year on repealing Obamacare but has made no mention of the recent heinous remark concerning McCain by a member of his staff.

      It is my opinion that Trump was behind Kelly Sadler’s remark and/or the ‘leak’ of the remark that resulted in its being brought to public attention. I invite anyone interested in an elaboration of my view to read my Amazon Kindle pamphlet, ‘Demand that Donald Trump and Kelly Sadler Tell the Truth’ (currently available for free).

      1. the larger issue of prejudicial conduct by some people in law enforcement toward persons of color

        There is no ‘larger issue’. The protests are a fraud.

          1. Yeah, Diane, I’m sure you go walking to your local Starbucks and see cops taking down ‘unarmed blacks’ on a daily basis.

              1. No, in the ‘real world’, one can expect in a given metropolitan region of ordinary size (say, the commuter belt around Louisville or Omaha), that local police will kill one or perhaps 2 people in a typical year and that you can go for a decade or more ‘ere locating a truly troubling case. This is simply not a systematic problem and that is understood by anyone who can do long division.

                1. “No, I’m passably informed.” -Nii, aka Nutchab, downthread

                  No, you’re an example of someone who passes as “informed” because you’re fairly articulate. You’re living in a cocoon.

                  1. No, you’re an example of someone who passes as “informed” because you’re fairly articulate. You’re living in a cocoon.

                    No, I’ve read the statistics and calculated the probabilities. You have not, and you’re not drawing on daily life, either.

                    1. I’ve read the statistics and calculated the probabilities. -So says SOT

                      Sure you have. You’re clearly clueless; you have no idea…, but keep pretending that you do.

                  2. Anonymous, NII is a well-informed person with a lot of facts at his fingertips and most of the times he is accurate. He is also articulate. That is why he sounds intelligent. He is. See if you can keep up with him because to date you haven’t. Instead your very concrete thoughts and logic fall directly to the bottom of the barrel.

                    1. “Pure Allanonsense.”

                      Anonymous, I don’t expect you to understand much of anything. Look at your response. No data. No argument. No nothing. You have an empty head.

                    2. You don’t rise to the level of argument you claim for yourself, Allen.

                      You haven’t offered anything in quite some time.

                    3. “You don’t rise to the level of argument you claim for yourself, Allen. You haven’t offered anything in quite some time.”

                      When one is dealing with dopes it doesn’t make a difference what facts or opinions one has. You have obviously been around and are probably embarrassed by another of your aliases so you utilize a new one. What have you said? Absolutely nothing.

                      Let’s see. My last post was to anonymous who has nothing in her head. I think the one before was to Peter Johnson who doesn’t seem to understand the First Amendment. I commented on that and quoted from the amendment. What did you do? Nothing. You were too busy trying to find something to bit-h and moan about. You are totally worthless R. Lien.

                2. There are about 800K in US law enforcement.
                  There are about 60 officers killed in felonies a year.
                  The police kill about 900 people per year.
                  The official data is crap, The best source today is WaPo which is keeping track of news stories in which someone is killed by the police, there are also some blogs that have been doing this longer who confirm the WaPo numbers.

                  Blacks are killed by the police at about 2.5 times the rate of whites.
                  That is perfectly consistent with all the rest of the data we have on black violence and crime.

                  Blacks are the victims of crimes at about 2.5 times the rate of whites. Blacks are reported to police as committing crimes about 2.5 times more than whites, Blacks commit murders and are victims of murders at about 2.5 times the rate of whites.

                  There is no statistical evidence of systemic racism – that does NOT mean there are no racist cops,
                  Nor does it means that all police shootings are justified.

                  What it does mean is that there is a minority crime problem. Blacks are both the perpitrator’s and the victims to their own detriment.

        1. To steal a line from the classic movie North by Northwest ‘Well one thing we know. You’re no fake (fraud). You’re a genuine idiot’.

          1. No, I’m passably informed. You know nothing but your stupid talking points.

            1. Based on your comments, it seems to me, that someone regularly, fills your brain with excrement and forgets to flush.

      2. John McCain is scum, who repeatedly got American soldiers killed, either by giving info to North Vietnamese:
        https://rightedition.com/2017/02/18/songbird-mccain-evidence-words-fellow-veterans-captors/
        or by showboating antics causing explosions on his ship
        https://www.theburningplatform.com/2015/07/23/mccain-the-hero-nearly-sunk-an-aircraft-carrier-killed-134-sailors/:
        or by fighting all attempts to save POWs left behind in Vietnam, (who left clear markers as they were taught), and attacking their families for wanting them saved:
        theamericanconservative.com/articles/mccain-and-the-pow-cover-up/
        If his Dad and Grandfather wqeren’t Admirals, we would have been shot, as he so richly deserves. I hope the pain he inflicted on the families of those he killed comes back to him 1000 fold in suffering before he dies.

        1. realetybytes,

          You might now be aware this website permits only two links per comment. I edited the comment to allow it to post.

          If you like for the readers to review more than two links, this may be accomplished through the use of additional comments.

    2. “Being a U.S. citizen means you have a right to protest. Just as critics often wrongly portray those objecting to protests during the national anthem as hostile or blind to racial inequality, it is equally wrong to suggest that protesting players are somehow lesser Americans. These players care about this country and are seeking to use their positions to raise awareness of an ongoing problem. That is what good citizens do in our national discourse. You simply do not have the right to protest anywhere at anytime in any way of your choosing.”

      Most of what you say here is true, but the last sentence is misleading. An American citizen does have a right to protest where they want, preferably so they will remain visible to the nation at large. The limiting factors are confined to the maintenance of a non-violent protest, which includes not obstructing the function of certain government and business entry ways. So if protesters do not block public entrances, nor do they disrupt and act with violence, they have every right to a public redress of their grievances.

      As far as offending veterans, do you deny that many black Americans have served in our wars, including some in more recent conflicts like Afghanistan and Iraq? So when their decision to make us aware of the unfair way many black people are treated by the government and local police aren’t they also acting completely within their rights! They are not demeaning veterans, black, red, or white or by assailling some by flaunting sacrilegious on unpatriotic opinions!

      If anyone politicized this issue it was not the athletes who simply chose a public forum for their protest in order to transmit their feelings throughout the entire country–it is Donald Trump, who played on raw emotions by suggesting that the protesters should be thrown out of the NFL for simply exercising their rights.

      Business owners do have the right to chastise players for doing controversial acts which hurt their businesses, but the last amendment does not pertain only to government repression, but stands as a lawful axiom designed to protect Americans from any party of group that seeks to deny those rights. Its a shame that money matters more than convictions and thus can be a barrier to real democratic principles. Instead we now are told by Citizens United, that money equals speech–making it only right to give wealthy businessmen and corporations vast economic power to elect or reject whomever they please? That is really what is unpatriotic!

        1. “Congress shall make no law … abridging the freedom of speech …”

          Nowhere does it say that you can’t be fired when your freedom of speech interferes with the normal practice of business.

          1. That’s true, but should that be the case? If so, it should apply everywhere. Take for instance a group of fundamentalist Christians forming a line of protesters outside of one of the few remaining Family Planning Clinics (a non-profit, but a business nonetheless) So should the courts order them to cease intimidating potential customers entering those clinics? Why not? A line of chanting demonstrators who literally get in the faces of already traumatized women (some rape or abuse victims) is not going to help businesses, yet in that case the courts back the rights of the demonstrators i.e. protestors?

            Currenlty businesses can require employees to conform to the their rules or be terminated. But does that justify the President’s angry implicatton that they are traitors for wanting to exercise their constitutional rights?

            1. Peter Johnson, There is a difference between an employee and a nonemployee. An employee can be fired for disrupting the employer’s business.

              The protests you are talking about that occur in front of abortion clinics have been litigated. These protesters are not employees so one cannot fire them but the courts have ruled in a manner so that entrance and exits from these clinics are not physically impaired. You are mixing up the different causes of action that can occur.

              The President has freedom of speech as well. You may not like what he said though I think what he said was correct. You don’t have to vote for him and no, calling for the players to be fired for politicizing football is not impairing their rights. They can go down on one knee when they are not working and no one has to listen to what the President says in that regard.

              The MSM intentionally confuses a lot of people because they are used to promoting their own political beliefs. You have to take a step back and think carefully about anything they say or you can easily be trapped into believing things that aren’t true.

      1. If anyone politicized this issue it was not the athletes who simply chose a public forum for their protest in order to transmit their feelings throughout the entire country–it is Donald Trump,

        No, athletes who decide to undertake inane protests at football games are politicizing the games. Inappropriately.

        1. If that were the case, then any protests taking place anywhere, could be considered as politicising any issue. However protest themselves are almost always in opposition to laws or regulations which have already made a given issue become political. It’s the laws that determine what is just and unjust. However, that includes the fact that some of the laws themselves are unjust i.e should we, or should we not also have the right to civil disobedience?

          In the Jim Crow South, any store or restaurant owner could claim that the presence of the (N words) should not be permitted, due to their interference in his or her business—and the southern courts agreed. But the Freedom riders did not cause those racist laws to be on the books, i.e. nor did their protests politicize the issue of discrimination because discrimination had already existed for hundred of years. However many store owners considered their rights as business owners to supercede all? If you or I are hungry and try to enter a restaurant to get something to eat, would we be responsible for politicizing the issue when we are forcefully expelled?

          Our rights to protest exist party to challenge harsh laws as well. So if demonstrators could always be denied their peaceful right for a redress of grievances, at the whim of a business owner, would that be right?

          I already agree that the laws as they are, support the rights of of businesses and their owners, I am simply questioning if that right should apply in all cases!–especially when one’s rights are asserted non-violently?

      2. No, you do not have the right to protest where you want, nor is there a “right” to be visible.

        You have the absolute right to do pretty close to anything you want – within your own space.

        You have the right to say almost anything you want in an actual government created public forum – there are allowed to be rules, but they can not regulate CONTENT.

        You do not have the right to say whatever you want while you are working for someone else.
        In some jobs – those where your outside of work conduct strongly reflects on your employer you may not have the right to say whatever you want even when you are not at work.

        NFL Players can be fired for taking a knee.
        Roseann can be fired for offensive tweets.

        The right is NOT to protest, it is to speak, that is a a broader right than to protest.
        There is no separate right to protest from the right to free speech.

        Violence is always prohibited – it is not speach.

        You are allowed to picket in public space – that is OUTSIDE the establishment you are protesting.
        Not blocking entrances and exits is a content neutral regulation of public forums.
        You are NOT allowed to protest in non-public space – that includes inside of “public” stores. That is still private space. And the owner of a store CAN regulate the speech that occurs in their store and CAN tell you to leave if they deem it unacceptable, and CAN have you arrested if you do not.

        There is no right to public redress of greivances, there is just a right to free speech.
        The latter MIGHT concurr with the former, but the latter is the right, the former is not.

        The language is important. Using the wrong words as you have done, alters the meaning and makes them error.

        There is a right to free speech in government created public forums.
        There is a right to close to anything – including free speech in your own space.
        You have almost no actual rights in the space of others.

        I am using “government created public forums” very specifically – “public space” – privately owned space that the public might use, is NOT a free speech zone.
        All government space is NOT a free speech zone.
        And even in “public forums” non-content based rules are frequently allowed.

      3. Protesting is almost always inherently political.

        It is possible that a football stadium is a government created public forum.
        If so that would bar government from regulating speech in that forum.

        It would not have any effect on the rules that employers might have on their employees.

        “Business owners do have the right to chastise players for doing controversial acts which hurt their businesses,”

        Bzzt, wrong – they absolutely do. When you sell your time to someone – they may impose almost any conditions they wish. And you are free to quit if you do not like the conditions.
        There is no right to a job.

        Some employment – including that of football players is subject to terms of contract.
        Contracting is a right too.
        You and your employer or prospective employer are always free to enter a contract.
        That contract can say – you are free to say or express whatever you wish while working.
        It can also say you are not free to say or express whatever you wish – even on your own time.

        There is absolutely no difference between Roseann and the football players – except possibly the terms of their contracts.

        But I would bet BOTH have clauses that allow sanctions or termination even if expressions or actions outside of work cause harm to their employer.

        Again there is NO RIGHT TO A JOB.

        “but the last amendment does not pertain only to government repression,”
        Bzzt, wrong.

        Aside for the right to be free of violence from others there are no rights with respect to other people or groups outside your own space.
        The constitution and our constitutional rights have nothing to do with the relations of people to each other.
        They ONLY apply to the relations of people to government.

        The right to a free press does not mean I can not buy a newspaper and shut it down.

        It does mean that government can not.
        Regardless the constitution does not have any bearing on the interactions of groups and individuals.

      4. “Instead we now are told by Citizens United, that money equals speech”
        Misrepresenting CU.

        Money != speech.

        Money is a facilitator and sometimes a necescity for speech.

        First amendment law means that government may not regulate speech, OR the necessities of speech.

        Government can not pass a law that says – you can say whatever you want – at 3am on sunday in your shower when there is a full moon.

        If you have the right to free speech in a specific situation – then government may not interfere with that right to free speech by imposing conditions that do not limit speech directly but do so indirectly.

        Government can not say – you are free to run as many TV adds as you wish.
        But you are only allowed to spend $10,000 on TV adds as a means to regulate the speech.

        CU stands for the proposition that you can not regulate speech through the back door.

        And that is PRECISELY what laws regulating money in politics pretty much openly attempt to do.
        Even if the purpose of campaign finance laws was not to regulate speech – which they quite clearly are and those who want them OPENLY admit that, the fact that, that is the effect, and that is unconstitutional.

        When you say the wealthy or corporations because of there money have vast economic powers, what you really mean is that they have more ability to speak than others.

        Absolutely, the wealthy and corporations have always and will always have more economic powers.
        And that will always be true – unless you move to pure communism and have everyone living and dying in poverty.

        Equal rights are solely with respect to the government. We are otherwise not equal.
        We are not the same race, the same height the same intelligence the same athletic ability.
        Government can not and may not change that.

        Government secures our natural rights by thwarting our natural right to initiate violence against each other.
        Everything else it up to us. Nature is not fair – get over it.

      5. Of course they have a right to protest, but their boss has a right to make them remove HIS uniform, and get off HIS property to do so.

  3. The CEO of a private company cannot be fired by Congress. The NFL Commissioner is answerable to Congress and can be removed by an Act of Congress. Why would this not provide the necessary First Amendment nexus?

    1. The NFL commisioner is NOT in anyway affiliated with government.
      He is no more answerable to congress than a CEO.

  4. “No court will rule that employees of a private company have a right under the First Amendment to conduct protests at work against the wishes of their employer.”

    How much would you bet? Prediction: the players will find a federal court to rule this unconstitutional and we’ll end up with a clash between appellate courts.

      1. I don’t understand why the NFL’s quasi-monopoly status would predispose a federal court to rule against the players if they challenge the NFL’s new rule in court. I’m not trying to be contentious – I’m actually curious as my background is in finance not law.

        JT stated that NO court would rule the NFL couldn’t impose their rule as a condition of employment. He’s probably correct as a matter of law. However, I suspect he’s being somewhat naive in dismissing the possibility that some court will find some gray area in legislation or precedent to rule for the players.

        1. JR – if I remember correctly, and I may not, the NFL is in this real gray area legally. The individual teams are not.

Leave a Reply