By now, we all know that politics has hijacked the NFL. Starting with Colin Kaepernick’s protests during the 2016 season, when he would take a knee during the singing of the National Anthem (to protest alleged police brutality against blacks), the effort has been expanding, with entire teams now kneeling in unison, locking arms or not even coming out onto the field at all (although what they’re actually protesting has moved on from Kaepernick’s original purpose). It’s not surprising that heated debate would follow such a visible message sent from athletes, but much of the argument has incorrectly cited the first amendment in the NFL players’ protest.
The first amendment provides us the freedom of speech – to express ourselves however we wish, to openly criticize our leaders and government without fear of repercussion, and to peaceably assemble to protest laws, policies and other actions by our elected officials that we’re unhappy with. Our freedom has limitations, though – of course, we all know the extreme example that the first amendment doesn’t give anyone the right to falsely shout “fire!” in a crowded theater. But the limitations go way beyond that.
Freedom of speech does not mean that anyone can say anything at anytime without the possibility of consequences. For example, if you have a guest in your home who expresses an opinion – any opinion, on any topic – that you don’t like, you’re allowed to kick that person out of your house. They’re freedom of speech (without repercussion) doesn’t extend into your home. Similarly, if you walked into your job one morning openly criticizing your boss, or talking about how much better the competition is than the company you work for, you probably won’t be too surprised when you get fired soon after. Again, the first amendment doesn’t protect you from being persecuted for what you say in situations like these.
In 1891, Oliver Wendell Holmes, Jr, who served on the Supreme Court, explained it by saying, “An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” This pretty much negates the popular refrain by many who incorrectly argue, “well, it’s a free country” when trying to defend themselves or others who openly express an unpopular opinion – the implication being that our first amendment rights allow us to say whatever we’d like without any consequences.
This is why we often hear about employees being fired for expressing controversial opinions even outside of work, beauty contest winners being stripped of their crown for engaging in controversial activities away from the pageants, or celebrities losing endorsements for saying or doing something that may embarrass the brands they’re paid to represent.
So when it comes to the NFL, the players are only allowed to the protest openly on the field if their employers allow them to. Yes, they can technically protest by kneeling during the National Anthem, but that doesn’t mean there wouldn’t be consequences (loss of job, for instance), if the team owners or the NFL commissioner decided (as they should), not to allow them to.
If either the commissioner of the league, or the team owners tell the players that kneeling during the anthem, or any other form of protest would result in indefinite suspension, they would be well within their rights to execute those punishments. Aside from the basic issue that most fans tune in to games to watch football and not be force-fed political commentary (from millionaire players who largely went to universities they likely couldn’t have gotten into based strictly on their intellectual merit), those protesting by disrespecting our national anthem are doing so in stadiums nearly all of which have used a “staggering amount” of taxpayer funds (nearly $7 billion) to build – not including the costs to federal and state governments to operate, provide trains and roadways systems for, properly police, etc. While the players have the right to protest, the team owners or the NFL itself have the right to fire those who do, and they should.
If the players’ commentary is about racism, or police brutality, or any other such issue, then fine – as Americans, we should have those discussions. But they don’t belong on the football fields, in taxpayer-funded stadiums, by deliberately disrespecting our country. Regardless of anyone’s opinion on that, however, those citing the first amendment when defending the players are wrong to do so – chances are, the first amendment is being used in these debates by people who agree with the message that the players are trying to send, and find the first amendment (and most people’s incorrect understanding of it) a convenient crutch to support their argument. But my guess is that these same people shouting “they have freedom of speech!” would feel much differently about the amendment if other players began waving confederate flags (or even worse, Nazi flags) for their own political reasons. First amendment arguments seem to only support a person’s freedom of speech when it expresses an opinion they want to hear and that they believe in. In reality, it either works for everyone or it works for no one – the first amendment doesn’t weigh differently based on the popularity of what’s being expressed. And as it’s written in our constitution, being free to speak, express and protest does not also mean you are always safe from repercussions when you do.