Following the recent trend for NFL players to kneel or sit during the National Anthem, many have been asking whether this speech is protected under the First Amendment.
American athletes throughout the years have used their platform to make political statements, and have typically faced brutal censure for doing so. At the 1968 Olympics in Mexico City, African-American sprinters Tommie Smith and John Carlos accepted their gold and bronze medals with raised fists to represent black power.
Under pressure from the International Olympic Committee, Smith and Carlos were suspended from the Olympic Village, kicked out of the team, and sent home. When they returned home, they were ostracised by the American sporting establishment, subject to abuse from the public, and received death threats.
But is NFL players taking a knee during the national anthem a First Amendment issue? In short, no. The First Amendment says:
“Congress shall make no law . . . abridging the freedom of speech.”
Clearly, this relates to government regulation of speech. It doesn’t apply to private actors, nor to private employers, such as the NFL. Private employers have a lot of leeway to regulate employee speech, or to fire and suspend an employee for a speech-based issue.
There are, however, other laws that an employer would need to be aware of if they wanted to punish players for taking a knee during the national anthem. These include the National Labor Relations Act, anti-discrimination and anti-retaliation statutes, and protections for whistleblowers.
If the NFL were to introduce a law which required players to observe the national anthem, then players could be suspended for observance. However, the NFL does not have such a rule. In fact, the NFL’s collective bargaining agreement does not mention The Star-Spangled Banner at all.
Contrary to President Trump’s claim that the first owner to “fire” such a player would become “the most popular person in this country,” any attempt to introduce and enforce such a rule would be incredibly contentious.
It was, for that reason, incredibly symbolic that Jaguars owner Shahid Khan linked arms with his players during the National Anthem. He didn’t look like an owner who is about to fire his players.
So although the right to take a knee is not protected under the First Amendment, players are entitled to sit, stand or take a knee as they wish.