This question came up this week in my Monday night class, when we were discussing First Amendment cases, and I’m planning to revisit it at the start of next week’s session. Meanwhile, I’d like to preview a few points right now, as well as post a link to a fresh new article in Politico Magazine on this very same subject.
As we all know, Colin Kaepernick and some other NFL players–now more than ever, having been egged on by El Trumpo–have been refusing to stand at attention for the national anthem, instead kneeling down (“taking a knee,” as it has come to be called). Trump has ranted about it on Twitter, suggesting that Americans should boycott watching the NFL games and that the NFL should make a rule demanding that the players all stand the the anthem. And the question that came up is, how does the First Amendment relate to this?
When we talk about the First Amendment, especially when we’re in Chapter 4 of most American Government textbooks, the one titled “Civil Liberties,” we’re talking not about the general philosophy of free speech, but more specifically about court cases, almost entirely federal court cases, especially Supreme Court cases. And, what does it take to make a federal court cases involving freedom of speech under the First Amendment? In a nutshell, there needs to be some person or group of people either getting punished for speech or in some way blocked or hindered from expressing themselves by the government. Now, all of the aforementioned terms are broad. Speech is broad: it can include a wide range of forms of expression, including physical actions that have the intent and the effect of sending a message. Punishment and obstruction of speech also come in a wide variety of forms. And what is the government? The government is essentially any agency that is officially run by either the U.S. government or any city or state. City Tech is a state- and city-run college, which means that First Amendment court cases could arise from incidents at City Tech that would not arise at our neighbors St. Francis College or LIU.
So far, what has happened involving Trump and the NFL is missing an important ingredient for a First Amendment court case: a government action either hindering or punishing the taking of a knee at the football games. What we have from Trump is not any kind of official punitive government action, but merely the expression of an opinion. Now, people are certainly free to say that it’s inappropriate for a president to take such a stand, especially to call for a boycott, but he’s still just expressing an opinion, and that is what stops it from being likely to come to any federal court.
Moreover, if the NFL were to take Trump’s advice and start using coercive tactics against the players, I don’t see a First Amendment case there either, because the NFL is not the government. This is not to be confused with saying there wouldn’t be other issues. Hypothetically, if the NFL started taking punitive action against players who took the knee, and if one of those players showed up at a lawyer’s office for help fighting it, the lawyer would ask to see the player’s contract and any and all prior written regulations of the NFL, to see if they were violating any prior commitments that could involve freedom of speech. I’m not saying there wouldn’t be grounds for a case, only that it wouldn’t be a First Amendment case.
But, let’s not leave the matter there. Let’s consider another hypothetical scenario. Let’s suppose that either Congress or the legislature of some state were to pass a law requiring all professional athletes to stand at attention when the national anthem was being played. Now would there be the ingredients for a nice juicy federal court case involving the First Amendment? Absolutely. And what’s more, I can think of two precedents that the kneeling football players would have on their side:
1. The 1943 Jehovah’s Witness flag salute case was not only about free exercise of religion (freedom from being compelled to perform an act that was contrary to one’s religious faith) but also about “forced speech”: the principle that freedom of speech includes freedom from being forced to express a point of view that one does not wish to express.
2. The 1993 case of Johnson v. Texas, which involved burning the flag as a form of political protest, involved symbolic speech and struck down a Texas law that tried to criminalize flag burning.
I don’t foresee any law being passed, but if it were, those are two precedents that it would be up against. But that isn’t what’s happening. What is happening is that the NFL players are taking the knee, Trump is expressing his opinion, and millions of Americans are expressing their opinions on both sides. As long as all anyone is doing is expressing opinions, there’s no free speech court case, just free speech being exercised.
But, enough from me. I promised you a link to a Politico Magazine article.