Thursday, October 05, 2017 3:10 pm
Fact check: The NFL and the First Amendment
NICOLE LEWIS | Washington Post
"Wouldn't you love to see one of these NFL owners, when somebody disrespects our flag, to say, 'Get that son of a [expletive] off the field right now. Out. He's fired. He's fired!' . . . But you know what's hurting the game more than that? When people like yourselves turn on television and you see those people taking the knee when they are playing our great national anthem." -- President Donald Trump, remarks during a rally in Alabama, Sept. 22, 2017
President Donald Trump's remarks on NFL players taking a knee during the national anthem stoked a debate about football players' right to protest during a game. Many Republican lawmakers have responded to Trump's comments, framing the issue as a matter of free speech and respect of military veterans. On Sept. 23, Trump doubled down on his initial comments in a series of tweets, reiterating his initial assertion that players who protest during the national anthem should be fired.
The ensuing controversy, including remarks by Republican leaders, has raised questions about the players' right to protest under the First Amendment. Here is a guide to understanding where the First Amendment applies.
"If a player wants the privilege of making millions of dollars in the NFL,or other leagues, he or she should not be allowed to disrespect. . ..our Great American Flag (or Country) and should stand for the National Anthem. If not, YOU'RE FIRED. Find something else to do!" -- Trump, in a pair of tweets, Sept. 23
By calling for players to be fired Trump is expressing his point of view. But his comments raise the question: Can the NFL fire players for protesting?
Well, yes, but it is unlikely.
Following Trump's tweets, a viral Facebook post incorrectly stated that players were required to stand in accordance with sections A62 and 63 of the NFL rulebook. But the rulebook, which covers codes of conduct by players and coaches during games, does not actually address the national anthem. However, the NFL game operations manual, a 260-page document that addresses game rules at a higher organizational level, does. Below is a snippet of the policy:
"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 home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses."
Yet the policy allows teams to use their discretion, and currently, according to NFL spokesperson Brian McCarthy, players are "encouraged but not required to stand for the national anthem."
Before 2009, according to McCarthy, players in prime-time games were not required to be on the field, but came out after the anthem on cue from the networks. Players in daytime games, however, were on the field during the anthem. In 2009, the NFL decided that all players should be on the field to ensure consistency across all games.
Even though the manual spells out a player's conduct during the anthem, a "player's rights as an employee are largely determined by contract," according to Michael McCann, Sports Illustrated's legal analyst and associate dean for academic affairs at the University of New Hampshire Law School. McCann spelled out the routes the league could take to fire a player for protesting in a Sept. 23 post on SI.com.
McCann found that a standard player contract "offers considerable discretion to teams in the decision to terminate a player's employment." McCann points to two sections of contract, including a clause that states players must conduct themselves on and off the field in a manner that maintains "public respect" for the game. Additionally, players must also ensure their "personal conduct" does not "adversely affect or reflect on the Club."
McCann notes that fired players have the right to petition and receive an arbitration hearing, as spelled out by the collective bargaining agreement between the NFL and the NFL Players Association. During the hearing, a neutral party would weigh evidence and determine whether there was sufficient grounds for termination.
"This isn't about Democrats, it's not about Republicans, it's not about race, it's not about free speech. They can do free speech on their own time." -- Treasury Secretary Steven Mnuchin, remarks during an appearance on ABC's "This Week," Sept. 23, 2017
"That's their right to do what they want as citizens." -- Sen. John McCain, R-Arizona, remarks to TMZ Sports, Sept. 26, 2017
Mnuchin argued that players' protesting was not a matter of free speech, while McCain asserts that protesting is a player's right as a citizen.
Who is correct?
Technically, when the players take the field they are doing so as private citizens employed by a private company. The right to protest is covered under the First Amendment of the U.S. Constitution. But the right has limits.
The First Amendment prohibits the government from restricting free speech. As a private company, the NFL is not subject to the same standard. If the NFL required players to sign contracts that restricted their free speech, and the players violated their contract, they could be fired with little legal recourse.
However, Peter Shane, law professor at Ohio State University, points out that government pressure to fire the players would be against the law.
"It would be against the law for Trump to threaten government action against a private entity in order to provoke the firing of employees based on their party affiliation, but that statute appears inapplicable here," Shane told VOX on Sept. 25.
Spokespeople for Mnuchin and McCain declined to comment.
"Now the First Amendment's the First Amendment. It goes start to finish. We can't say to one football coach, you're fired if you kneel in silent prayer at the end of the game, but to a player, if you kneel in protest at a game, you're celebrated." -- U.S. Sen. James Lankford of Oklahoma, Sept. 25, 2017
Lankford, in referring to a firing over prayer, is talking about Joseph Kennedy, an assistant football coach at Bremerton High School in Bremerton, Washington. Kennedy had a practice of leading teams in prayer during school football games. When it came time for his annual review, Kennedy's contract was not renewed on the grounds he "failed to follow district policy" and "failed to supervise student-athletes after games due to his interactions with (the) media and (the) community," according to court documents.
Kennedy filed an injunction on the grounds the school was violating his First Amendment rights. But the courts denied his injunction on the grounds that because Kennedy was employed by a public institution, his speech was not protected.
"When Kennedy kneeled, and prayed on the 50-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected," wrote the 9th Circuit Court of Appeals in 2017, denying Kennedy's claim.
The courts affirmed that Kennedy was violating the Establishment Clause of the First Amendment, which restricts government from prioritizing one religion over another.
Unlike Kennedy, the NFL players are employed by a private entity, so the Establishment Clause does apply to the league. But, as we pointed out earlier, the First Amendment protections don't apply to the players, and they could still be fired for protesting.
PolitiFact Oklahoma fact-checked Lankford's claims, and found them to be half-true, saying it was a misleading comparison.
Lankford's spokesperson, D.J. Jordan, said the senator has a different interpretation of the Establishment Clause and believes that Kennedy was well within his constitutional right to exercise his freedom of religion.
"Nowhere does the First Amendment or Constitution prohibit the government or government employees from referencing religion altogether, nor does it require that government officials proactively scrub all references of religion from the public square," he said. "Rather, the Establishment Clause ensures both that the government does not affirmatively impose or elevate one religion over another, and that the government does not take away an individual's ability to exercise religion."
By firing Kennedy, he argues, the school infringed on his "most basic rights" of the "free exercise of religion, free speech, and the freedom of association."