Free Speech, The NFL, The President & #TakeTheKnee

It was slightly over a year ago that I wrote about the new (at the time) controversy that was roiling the NFL, which was San Francisco 49ers quarterback Colin Kaepernick's decision to take a knee during the playing of the National Anthem prior to the 49ers games.  The purpose of Mr. Kaepernick's actions was to draw attention to police brutality issues among other things.  The media and the talking heads on ESPN in particular couldn't stop talking about it.  

At the time, from a legal standpoint it was quite simply about the rights of an employee to voice their personal opinion in a very public way while working for a private employer.  The NFL, as you know, is not the US Government, nor is it a state or municipal government for that matter.  The NFL is a private entity, as are the 32 NFL franchises that employ the NFL players.   Because of this fact, there is no civil rights issue, and there is no free speech issue.  It is WELL settled that private employers can dictate employee conduct while the employees are on company time - for instance  when an NFL player is suited up on the field about to being playing a nationally televised game.  

Fast forward one year, and the debate has persisted.  Mr. Kaepernick was released by the San Francisco 49ers and has not been signed by another NFL team despite there being a clear need for starting caliber quarterbacks. 

More players are registering some kind of protest in advance of the playing of the pregame National Anthem.  It has started to spread to team management and also to other sports, with the first MLB player following suit.  

The hashtag #TakeTheKnee is trending on Twitter in a huge way.  

So as the debate grows, the President weighed in and used some not so flattering language to describe the protesting athletes.  

In a surprising and creative move, the Pittsburgh Steelers decided to take the air out of the controversy altogether and not come out on to the field at all for the National Anthem at their game on September 24th

Not surprisingly, the issue has exploded over all the news outlets, and there is a lot of heat, but not a lot of light being shed on the issue.  

From a legal standpoint, there are some key things to remember when talking about this issue:

  1. This is not a First Amendment issue.  The employers and the league are private entities.  So therefore there is no civil rights issue presented by any adverse consequences that either the NFL or the individual NFL teams may impose on the protesting athletes. 
  2. The protesting athletes are certainly entitled to their opinion and the expression thereof.  However, expressing a personal opinion on company time (i.e. during a televised NFL game) may have adverse consequences from their employers. 
  3. It is time to evaluate in a serious way whether we place too much of a premium on the NFL and its place in American society.  Some commentators are trying to conflate an NFL stadium with the proverbial "public square" as that term is used in First Amenemdne litigation.  Again, however, this is a false premise based on bullet point #1, above. 
  4. The NFL is facing an incredibly challenging time right now.  It is facing increasing scrutiny due to health issues of its players, particularly concussion related illnesses, and now it is in the middle of a national debate about race, protests about police brutality and finds itself on the receiving end of some comments from the President.