The NFL – First Amendment Debate: This One Needs Some Clarity

The NFL – First Amendment Debate: This One Needs Some Clarity

There have been many opinions thrown around about the NFL Players and their kneeling protests. Some are saying it’s their right to protest and that it’s protected speech, and some argue that it’s a disruption and that they can be fired for it. So these two groups go back and forth, arguing about which side is right or wrong when the truth of the matter is that they are both right. That’s right! The players have the right and CAN be fired for it. So how can that be?

The First Amendment 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It doesn’t say anything about corporations.

To explain this, let us start with the recent statement by Teresa Stanton Collett, a professor at the University of St. Thomas School of Law who says “I don’t watch football. I don’t care about football. But I do care about constitutional literacy. Please stop saying football players have first amendment rights to disregard the direction of their private employers while engaged in privately sponsored activities — which is what NFL football games are.” She said that “They have no more constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any ‘rights’ they have are based on their contracts and employment law.

I think in this case, Professor Collett is right and she’s wrong. Now, before I explain myself, I should note that I am not debating whether or not any of this is the right thing to do. I am merely discussing the right to do it. Please don’t read into the words and try to remain objective.

Is Kneeling Protected Speech?

Of course it is. First, it should be known that protected speech is determined by using the “clear and present danger” test. This precedent was set by the famous Schenck v. the United States case from World War I. Basically, free speech is protected unless it presents a “clear and present danger” to United States security or someone specifically. Taking a knee doesn’t harm anyone. It’s actually considered a peaceful form of speech and protest because it does not present a danger to anyone.

However, kneeling doesn’t involve actual speech (words), so it is considered “symbolic speech”. Because of this simple fact, it needs to be put into contrast with cases such as Texas v. Johnson were the Supreme Court upheld the right of an individual to burn an American flag if they choose to. So yes… it would be protected speech.

The question that so many should be asking is “protected from what or who?” I’ll get to that in a second, but before I do, let me clarify something. The professor makes a decent point when she says “They have no more constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any ‘rights’ they have are based on their contracts and employment law.” This is true because we are talking about a private organization with a contract with a private citizen that just so happens to be engaging in protected speech. That is basically what I was saying in my recent article concerning the NFL Players and their protests. I wrote “You still have the freedom to say what you want and you won’t go to jail for it, but that doesn’t mean your actions are without consequence when you are being paid by someone else for your time.” We must understand that the business has rights too. This is especially true if the player is under contract.

Do Contracts Alter Rights?

Not really. It is true that you can attempt to waive your right or restrict your freedom of speech by signing a contract or gaining employment with a company that forbids it, but all this does is set up a situation where you can be fired for violations of certain terms or be made to pay back certain funds if those terms are violated. The government will more than likely not jail you for a breech of contract in a private matter.

I said “attempt to waive” for a very deliberate reason though. A “right” in this context is a “natural right”. A natural right is something you are born with. It is something that cannot be traded, signed away, taken away or anything else. The Founders recognized the natural right of individuals speaking freely and enumerated its protection by the First Amendment’s prohibition on Congress from making laws abridging freedom of speech. That’s a hint by the way.

By definition, there can be no law which can curtail or deprive someone of their right… such as speech. This actually includes contracts and employment law. This is because any law that is repugnant to the Constitution is null and void according to the Supreme Court – Marbury v. Madison. However, your decision to participate in something that somehow infringes upon the right of a business owner to conduct business as usual is something else that needs to be considered. To explore this, we need to look at Article 1, Section 10 of the Constitution and the 9th Amendment.

I bring up Article 1, Section 10 because it involves contracts. It states that no State shall . . . pass any . . . Law impairing the Obligation of Contracts. This plays into the argument that a right can be waived if done so under contract. This is a valid argument and I concede to that. However, it is also irrelevant in this case for a number of different reasons. For the most part, government tends to stay out of private contracts and agreements unless there is a dispute. Furthermore, no contract can truly infringe upon a Natural Right because rights actually exist in the absence of authority, not because of authority. If an agreement or contract attempts to infringe upon your rights, and you agree to it for whatever reason, all you’re saying in such contacts is that you are agreeing to not exercise said rights during the course of that contract. Essentially, you are willfully suspending them for a while, which is your right to do so. Your rights still exist though; you just consented to have them suspended for a bit in your private matter. There’s another hint. It still exists though and your will to exercise it is really the only thing that separates the thought from the act. Proof of this comes in the idea that workplace violence is illegal and when you sign up for a job, you agree that you will not engage in it. Yet… somehow it still happens.

Furthermore, I think it’s important to point out that the Contracts Clause has been almost read out of the Constitution by the courts. This is why we are witnessing an unbelievable amount of torts litigation as of late; because courts no longer respect contracts protecting businesses from liability and I think this may alter the debate in some instances. Still, the business has the right to conduct business as they see fit so long as it does not infringe upon the rights of an individual or violate mutually agreed upon contractual agreements. This is similar to how you can exercise your rights so long as it does not infringe upon the rights of another. This is where the line gets a little thin though and we need to examine the details very closely.

On December 20, 1787, Thomas Jefferson said that “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” This is actually our biggest hint. We should take note of the order.

It is also imperative that we examine the 9th Amendment because it states clearly that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In this context, this means that the players have the right to protest as they see fit. It also means that the teams have the right to conduct business without disruption and it also means that the two parties can engage in business if they choose to. So who gets the win?

To add some perspective (or perhaps some confusion), the Supreme Court has repeatedly ruled that even hate speech, no matter how bigoted or offensive, is still free speech. Yet, people are fired for engaging in hate speech all of the time. So how can hate speech be protected speech but people still get fired for it? Well, according to Katherine Stone, a law professor at UCLA who focuses on labor law, “it’s not at all uncommon—or illegal—for private-sector workers to get fired for what they do in their free time if it reflects poorly on their employer.” So if you are engaged in free speech that makes your employer look bad, you may be out of a job. This is especially true if you are in an “at will” employment situation. Of course, these statements apply to what you do in your free time; what you do on paid time is even stricter. Employment on contract is even more so.

Will the Government Protect the Players?

Probably not but that’s not really the question we should asking. The debate seems to be whether or not the players have the right to do it on “team time” or “on the clock”. Some suggest that if it’s free speech, then they do and that the government will protect them. Some are saying that they need to be fired for their actions. Honestly… it really depends on what those contracts say. It’s not really up to us and again, they have the right, but the teams have rights too. So let me provide some clarity for you.

What is important to note here is something I have tried to express for many years. The Constitution is not a document that “allows” the people to do anything. Instead, it is a document that restricts government. This was made very clear by what Thomas Jefferson said in the quote I provided above saying “a bill of rights is what the people are entitled to against every government”. It doesn’t saying anything about businesses or corporations either. This is important to note because the Bill of Rights really only applies to government action. It defines what our founders decided the government couldn’t do to its citizens. It does not apply to what corporations do to its employees. This is similar to how you have the Right to Keep and Bear Arms but probably cannot strap an AR15 to your back while sitting in the company lunch room without permission.

To be clear, understand that the 1st Amendment involves the government. These players have a private agreement with the teams they play for. These private agreements may not require them to stop kneeling, but said agreements could have other clauses that allow the teams to dismiss them for stirring the pot if it gets out of hand. This is where the customer’s power to boycott or patronize comes in. So let’s go ahead and ask the million dollar question.

Can NFL Owners Fire Players for Kneeling?

It’s quite possible. According to Sports Illustrated, the standard NFL player contract gives the team owners a considerable amount of power. The fact that players signed the agreement opens them up to all sorts of issues if they step out of what the clubs consider “their line“. Two lines in particular of the NFL player contract are of particular interest in this discussion.

  • Paragraph 2 for “employment and services.” The player pledges to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.
  • Paragraph 11, which concerns “skill, performance and conduct,” stipulates that the team can terminate a player’s contract if the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club.

If we think about the money being lost and the decline in ratings that have resulted from these protests, one has to wonder how much longer these will go on. If the people continue to pressure the NFL, no doubt they will cave at some point when the money is being lost. The point is that under these two clauses alone, one could say the players could be terminated at any time and it wouldn’t be a violation of their rights to do so. Or… if the owners wish for them to stop, they could try and compel them to stop under the terms of their contracts and it still wouldn’t be violation of their rights considering that the players willfully engaged in that contract.

So I have written all of the preceding to provide the necessary context for the following:

Nobody is really stopping them from kneeling right now and nobody will be able to stop them from kneeling if they are fired and forced to leave the stadium. The point is that they can still kneel either way. They have that right. We know that because nobody will physically stop them from kneeling short of removing them for trespassing if they refuse to leave private property. They could just be out of a job if they don’t abide by their agreements they willfully engaged in. Remember, federal law in this regard does not protect workers in the private sector — only government employees.

Contracts and Rights are two separate issues. Constitutional Rights concern a private citizen and the government, and in this case, contracts concern a private citizen and a private corporation. As I said in my article, “this is no different than if you worked at a bank and decided to use the front lobby as your platform.” If your actions are disrupting business and making the employer look bad, you CAN get fired for it and be barred from the grounds. You still have the right to say it or do it though; the government will not stop you from doing it unless you are trespassing or otherwise violating the rights of another.

Of course, there is another factor that muddies the water a bit, and that would be the billions of public dollars used by the these teams to help build their stadiums. Since taxpayer dollars are being used, a government hand is now involved. This could sway this debate in a number of different ways but I would imagine that would need to be settled in the courts and it would be a battle I would pay attention to.

Remember; we were all born with certain unalienable rights and nobody can take that away from you. The first amendment does not give anyone the right to say whatever they want without consequences… it just gives them the right to say it without the government infringing upon anyone actually saying it. Never forget that the Bill of Rights protects you from government but there is no right of employment. If you are willing to sign a private contract that will get you fired or fined for exercising your rights, then that’s on you. This is why I say that you may have the right, but you are not protected from making dumb decisions.

And yes, of course there are various forms of speech that are prohibited beyond that of the “clear and present danger” I spoke of earlier and they probably will get you some jail time. These include:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes
  • Among a few others…

These forms of speech will probably land you in hand-cuffs and that’s not what we are talking about.

The Bigger Problem

Now, with all of that out of the way, I must say that as a nation, we have really dropped the ball. This NFL / National Anthem situation has been a massive distraction for us. For only the second time since 1929, the Republican Party controls the House, the Senate and the White House. You would think that they would be able to move mountains. Many were elected on the promise that they would do just that. Republicans vowed for seven years to abolish Obamacare and promised that if we put them in office, they would. But while the nation was wrapped up in another flag distraction, Republicans failed to do the one thing they were elected to do and repeal it. Unfortunately, this may have been the last chance to do it and we were all busy fighting among ourselves instead of providing pressure on Congress. We should be ashamed of ourselves.

Divide and conquer works and this is all the evidence you need to prove that it does.

David Robertson

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David holds a Master’s of Science in Leadership. He also graduated summa cum laude with a Bachelor of Science in both Strategic Leadership and Security Management. Additionally, he boasts certificates in Operational Leadership, Homeland Security and Active Shooter Scenarios as well additional training in similar disciplines.

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