Although the First Amendment is the most well known amendment of the Bill of Rights, it is also the most misunderstood. The public mistakenly assumes that the right to free speech guarantees them a limitless right to free expression. That is not the case. The First Amendment only protects against government restrictions on the freedom of speech.
A perfect example of this is the National Football League players who have been taking a knee during the singing of the national anthem. They and their supporters justify these actions by claiming they are protected by the First Amendment. While the Bill of Rights protects against the government’s ability to censor them, it does not prevent the NFL teams they work for from taking action against these players.
NFL teams have every legal right to force players to stand
NFL teams are paying their players to show up and perform their jobs as outlined by extensive contracts and official league policies. The NFL uniform policy includes incredibly specific requirements such as when players are allowed to untuck their jerseys, what color socks they can wear, and even the length of the towel allowed to hang from their pants.
If a player decided that they didn’t want to wear their uniform in accordance with that policy, they could suffer legal repercussions and fines.
The uniform policy severely restricts players’ rights to self-expression, but players have consensually agreed to those restrictions by signing their respective contracts. If team owners or the NFL itself wanted to insert a clause or institute a policy that required players to stand on field during the national anthem, that would be legally enforceable.
In other words, the First Amendment does not protect these players from violating the terms of their contracts.
First Amendment protects against government discrimination, not private action
Those that support the NFL players kneeling need to understand that at no point have these players been under threat of force from the government. Even President Trump’s contradictory tweets are not infringing on these players free speech rights. Tweets, by themselves, are not a government action.
True government censorship of these acts of protest, where First Amendment protections would apply, would look very different. If, for example, the FCC decided that it would no longer allow the broadcast of NFL games that featured kneeling during the national anthem, that would be state action in violation of the First Amendment.
But, the government has not taken any action against NFL players for kneeling during the national anthem, and therefore these players First Amendment rights are not being violated.
NFL teams retain the legal right to enforce whatever code of conduct they prefer. The issue of whether or not they choose to force their players to stand during the national anthem is entirely up to them.
(Image of the New England Patriots kneeling during the National Anthem before a game against the Houston Texans at Gillette Stadium on September 24, 2017 by Jim Rogash/Getty Images)