Tyler is the Chairman of the Republican National Lawyers Association, Ohio Chapter.
In the case of the NFL protests, the First Amendment is clear.
If you’ve logged on to any social media platform or viewed any cable news recently, you’re likely familiar with the controversy du jour: President Trump’s rebuke of NFL players kneeling during the national anthem.
Opinions on this topic are wide-ranging and there is no shortage of passion. Is there a more respectful way to spread the players’ message? Shouldn’t protests shock the senses in order to gain mass attention? Was it appropriate for President Trump to characterize the protesters with such harsh language?
On these topics, there is plenty of room for healthy discourse and this piece does not purport to take a position. However, a few things are not up for debate: 1) the players absolutely have the constitutional right to engage in this form of protest under the First Amendment, 2) that right does not mean they can’t be fired, and 3) the president did not violate the players’ First Amendment rights when he said they should be fired.
What is the First Amendment?
The First Amendment to the U.S. Constitution states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That’s a whole lot of freedom packed in just 46 words. Of course, the “freedom of speech” portion is what’s at issue with the NFL protests.
What is Freedom of Speech?
The constitutional freedom of speech means that, with very limited exceptions, the government cannot censor your speech, punish you for speaking, or force you to speak when you do not want to. Importantly, freedom of speech isn’t limited to actual spoken words; writings and symbolic speech (such as kneeling during the national anthem) are also covered.
A second time for emphasis: the First Amendment is a restraint only on the government. The Supreme Court has been explicitly clear that the First Amendment “restrains no authority except Congress” (and state governments courtesy of the Fourteenth Amendment).
The Freedom of Speech as Applied to the NFL Protesters
When NFL players decide to take a knee during the national anthem, they are, without question, exercising their free speech rights under the First Amendment. This means that no government entity can force the players to stand for the anthem against their will or punish them for their choice to kneel.
While this form of protest is squarely within the bounds of protected speech, the First Amendment in no way prevents a private employer from discouraging or punishing its employees for taking part. In fact, there are countless examples of the NFL punishing players for exercising their freedom of speech. For example, the NFL has strict rules when it comes to players’ celebrations on the field. Could the government constitutionally punish Antonio Brown for twerking in the end zone? Absolutely not. But in 2016 the NFL fined him $9,115 for doing just that. And, as we all know, Colin Kaepernick, the first player to take a knee, is currently unsigned — no team has explicitly said why they haven’t picked him up, but it seems likely it’s at least partially because of the controversy surrounding him. This might seem unfair to some, but it doesn’t present any constitutional issues.
Now, just because the First Amendment has no authority to stop team owners from firing the players for protesting doesn’t mean they have absolute legal authority to do so. For example, the players’ individual contracts might prevent their firing. Looking at this through another lens: the First Amendment also protects freedom of religion, but, because it’s a restraint only on the government, it doesn’t stop a private employer from firing an employee based on their religion. But private employers are still prevented from engaging in this type of discrimination thanks to the Civil Rights Act of 1964.
Trump’s Comments and the First Amendment
At this point you may be thinking “that’s all well and good, but the president is a government official, so he can’t go around saying these players should be fired!” Even if you aren’t thinking it, some people are — just reference any social media platform.
Of course it’s true that the president is a government official. However, the president also enjoys the same right to express himself as the kneeling players. When President Trump said the players should be fired, his words did not carry the force of law. He cannot force the NFL or any team owner to take action. As far as we know, he didn’t make any effort to compel them to fire any player. After he made his comments, no players were fired and neither the NFL nor any team owner indicated they felt pressured to do so. Absent some official act of the government, no First Amendment violation can exist. There is not a court in this country that would be willing to hear a constitutional challenge of the president’s comments because no actual harm was suffered by the players.
Again, let’s look at this through a different lens. In 2014, the U.S. Supreme Court unanimously decided that President Barack Obama had unconstitutionally appointed three members of the National Labor Relations Board. Could anyone argue with a straight face that President Obama would have violated the Constitution prior to actually appointing the members when he interviewed them? Or when he said he felt he should be able to appoint them? No. In order for any violation to take place, the appointments had to actually be made. In order to violate the Constitution, there must actually be some action taken. Fortunately we are not living in George Orwell’s 1984, so thought-crimes do not exist.
A Quick Recap
The First Amendment to the U.S. Constitution is a restraint on government action only. When someone exercises their freedom of speech, they cannot face any sort of backlash from the government in most cases. However, the First Amendment does not place any restraints on private actors. A private employer like the NFL can absolutely punish its employees for their speech, whether by fining or firing them, without running afoul of the First Amendment. The president of the United States also enjoys the right to free speech. His words alone do not amount to government action, and saying he thinks the protesting NFL players should be fired does not infringe on their First Amendment rights.
Follow the author on Twitter: @tylerjherrmann