Commentators, pundits, and other public figures have advanced numerous claims about whether or not the First Amendment protects NFL athletes’ kneeling-protests from punishment by the NFL.
The First Amendment of the Bill of Rights protects free speech and protest from government infringement and interference. The First Amendment does not restrict the activities of private organizations such as the NFL, which are instead governed by their own contractual agreements.
In late August 2016, the San Francisco 49ers’ quarterback, Colin Kaepernick, refused to stand for the pre-game playing of the national anthem in protest of racism against “black people and people of color.” Other professional athletes in the NFL as well as in the NBA and NHL followed suit and protested their pre-game renditions of the national anthem.
The controversy worsened on Sept. 22 after President Donald Trump criticized kneeling during the national anthem as a “total disrespect of our heritage.” He then reiterated his criticisms and suggestion that protestor-players be fired.
Secretary of Treasury Steve Mnuchin echoed similar sentiments during an interview with ABC’s “This Week” a couple days later.
Many commentators took issue with the president’s objections and calls to the NFL and NFL teams to fire protesting athletes, citing the First Amendment’s protections of expression and protest. Others fought back, claiming that the First Amendment does not apply in private, non-government settings.
How the First Amendment is phrased is insightful: “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.”
The First Amendment is applicable only against the government – “Congress” – and not private entities.
Given that NFL games are organized by private organizations on (mostly) privately-owned football fields, the First Amendment is not at play when athletes decide to exercise expression and protest on the field; the government is not playing a role to need to restrict or limit in these privately organized events.
The contracts and agreements tying together NFL games, teams, and players are more relevant to examine here. NFL teams and individual athletes all mutually consented to the stipulations of these contracts; athletes are empowered and restricted during NFL games more by these stipulations than the First Amendment.
The contracts of the Dallas Cowboys’ Terrance Williams and Houston Texans’ Arian Foster, for instance, both stipulate that the athletes “conduct [themselves] on and off the field with appropriate recognition” of the importance of “public respect and approval” of the game.
The NFL’s Personal Conduct Policy similarly stresses that players “strive to conduct ourselves in ways that favorably reflect on ourselves, our teams, the communities we represent, and the NFL.”
The NFL’s 2017 Official Playing Rules go a step forward and prohibit players from “wearing, displaying, or otherwise conveying personal messages” or “which relate to political activities or causes.”
The wording of these agreements suggests that, if anything, NFL players’ freedom of expression is subordinated to what the NFL, or what their NFL teams, consider appropriate to express – a contractual obligation athletes voluntarily agreed to adhere.
Discussions about what NFL contracts condone aside, the First Amendment does not protect professional athletes’ on-the-field, pre-game protests. The First Amendment does not apply to sports games conducted by private parties on privately owned property.
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