Below 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.