Does the First Amendment’s right to free speech prevent the NFL from
firing or punishing its players for kneeling down during the national
anthem? No. Alas, the First Amendment to the US Constitution is specifically
designed to limit government officials and not private businesses. The
NFL is a private company and, therefore, has every right to fire players
or otherwise punish them for breaking their rules or team contracts. The
question regarding the power the NFL has over the players is more of a
contracts question and not a constitutional matter. NFL owners likely
have the contractual rights to fire a player for kneeling during the national
anthem. However, it would be interesting to see what, if anything, each
contract specifically states regarding national respect and the national
anthem. It appears that the NFL actually has rules regarding being out
on the field during the game. Despite that rule, they declined to issue
any fines last weekend. This could potentially lead to litigation on other
matters as the legal argument might be made by players’ attorneys
that the NFL waived their rights to enforce.
Does the First Amendment right to free speech prevent the government from
punishing NFL players for kneeling down during the national anthem? Yes.
But that’s not really at issue in this case. While President Trump
has expressed his disapproval of disrespecting the nation by kneeling
down during the National Anthem, he has not “fired” any players.
President Trump cannot punish the players. If he were to do that, that
would be extremely concerning for everyone, regardless of what side you
are on regarding the protests. If an NFL player were to be fined by the
government or charged criminally for their protest, I am certain that many
lawyers, including myself, would be eager to defend the Constitutional rights
of the person being charged. It may be arguable that President Trump shouldn't
be making comments about boycotting the NFL as it is in a way a punishment,
In any event, the NFL is dealing with a major situation. On one side, people
applaud the efforts of athletes to make a stance for social change and
equality. On the other side, people are angered at the disrespect being
shown to the armed forces.
Dallas Cowboys owner Jerry Jones’s response to the situation seems
to be a brilliant answer to the situation. He had his team kneel before
the anthem to show support for the protests while being unified, and then
stand for the national anthem. It seems to be a win for everyone. Will
the rest of the league follow suit?
If the anti-protestors refuse to show support for the protest
before the national anthem, it would seem to show a lack of concern for equality
and social justice.
If the protestors insist on kneeling
during the national anthem and not just before, it would seem to show they are
more interested in fomenting discord than then trying to effect positive change.