Taking a Knee For First Amendment Rights: Free Speech Precedent for NFL Players
Athletes of the National Football League have recently displayed a strong sense of solidarity in combating police brutality by linking arms and kneeling during the national anthem. The NFL protests began in 2016 when San Francisco quarterback Colin Kaepernick sat during the playing of the national anthem in protest of the discrimination of black Americans. In recent months, many players have followed in Kaepernick’s footsteps. President Donald J. Trump, however, has referred to these demonstrations as “unpatriotic and disrespectful.”[1] Trump has used a number of platforms to condemn these demonstrations and suggest that the NFL fire those who have “disrespected the flag.”[2] For example, on Twitter, Trump blatantly stated that, for any player who did not stand for the American Flag, “YOU’RE FIRED!” The President’s tirade continued for days after, as he called “for a rule that would require players to stand, praise for a crowd that booed the Cowboys for kneeling prior to the national anthem, and multiple calls for fans to stop watching or attending NFL games.” On one hand, some argue that these protests demonstrate a lack of respect for the nation; whereas the other side argues that these demonstrations are, in fact, centered around the nation’s greatest values. However, in analyzing the legal history of symbolic speech in the U.S., it is evident that Trump’s requests to fire NFL players are unlawful and not justified by past legal precedent or federal statutes.
While the earliest cases on free speech date back to the 1800s, the most relevant precedent was established in the 1989 case, Texas v. Johnson. In a protest outside the Republican Party Convention in Dallas, Texas, Gregory Lee Johnson set ablaze an American flag which had been handed to him by a fellow protestor. Johnson was then arrested, charged and convicted by the district court of violating a Texas law which prohibits the desecration of a respected object. The case would eventually make its way to the Supreme Court, where the Court would consider various issues surrounding the protection of free speech.
The first issue considered was whether nonverbal and unwritten acts are protected under the First Amendment. Johnson’s actions, like those of Colin Kaepernick, were not spoken or written words. Thus, with this case arose a new issue: how would a court determine if a display possessed sufficient communicative elements to fall under the protection of the First Amendment? The Court answered this question by asking whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."[3] Indeed, the Court found that Johnson’s conduct did constitute “expressive conduct”, thereby making it permissible which parallels the conduct of the many players who have participated in the protests initiated by Kaepernick. Rather, the conduct of those individuals kneeling through the playing of the national anthem comes as an effect of an adjudication made nearly three decades ago—that non-speech is equally entitled to the rights accorded under the First Amendment.
The second issue Texas v. Johnson raised was whether Johnson’s burning of the flag demonstrated expressive conduct, thereby permitting Johnson to invoke the First Amendment. The court ruled that although the government has a broader sense of power in limiting expressive conduct, it cannot "proscribe particular conduct because it has expressive elements." Any attempt to do so would be a violation of the First Amendment. The protests recently taken on by the NFL are, likewi
se, forms of “expressive conduct.” They are being used as tactics for combating police brutality and racial inequality, thereby giving them their expressive conduct elements. Thus, the rights of the protests NFL players have undertaken are reinforced by the law.
While the players’ actions are completely authorized under legal precedent, President Trump’s harsh rhetoric carries an enormous amount of weight and interferes with freedoms afforded by the First Amendment. In 1968, The O’Brien test was established by Chief Justice Warren to determine what instances governmental regulation violates the First Amendment (United States v. O’Brien, 1968). According to the O’Brien test, the actions of the government must: (1) lie within the constitutional power of the government, (2) supplement governmental interests, (3) not suppress freedom of speech, and (4) impose only the necessary amount of restriction.[4] The President’s comments seem to be violating, at the very least, the third standard of this test. By demanding that the NFL fire members of its league, Trump contradicts the O’Brien test which strictly forbids government agencies from suppressing an individual’s expression of the First Amendment unless absolutely necessary.
The restrictions Trump faces in his requests are further expanded upon under 18 U.S. Code §227, which prohibits government agencies from “wrongfully influencing a private entity’s employment decisions.”[5] Trump’s directive to fire the NFL players participating in these mass demonstrations is likewise in violation of this federal statute. This is not to say that the NFL is incapable of taking any action. On the contrary, they are quite capable of finding a number of reasons for firing a player. It only means that by demonstrating partisanship for a certain side of this issue, the President has undermined the nation’s freedom of speech and is in violation of previous legal precedent. The guidelines set under Texas v. Johnson demonstrate that the conduct of the NFL players is acceptable; whereas the guidelines set under United States v. O’Brien prove that the actions of the President are totally unacceptable. Ultimately, whether or not the President or fellow Americans agree, NFL football players should and can exercise their First Amendment right to protest during the national anthem.
[1] Daniella Diaz, “Trump on NFL Owners: ‘I Think They’re Afraid of Their Players’,” CNN, Sept. 28, 2017,
http://www.cnn.com/2017/09/28/politics/donald-trump-nfl-owners-afraid-of-their-players-health-care/index.html
[2] Adam Stities, “Everything You Need to Know NFL Protests During the National Anthem,” SBNation, Oct. 10, 2017,
https://www.sbnation.com/2017/9/29/16380080/donald-trump-nfl-colin-kaepernick-protests-national-anthem
[3] Texas v. Johnson. Cornell Law. Legal Information Institute.
https://www.law.cornell.edu/supremecourt/text/491/397
[4] Sergey Tokarev, “O’Brien Content-Neutral Free Speech Test,” Civil Liberties, Oct. 08, 2012,
http://uscivilliberties.org/themes/4231-obrien-content-neutral-free-speech-test.html
[5] Michael McCann, “Can Trump Legally Command the NFL To Fire Players?” Sports Illustrated, Sept. 24, 2017,
https://www.si.com/nfl/2017/09/24/donald-trump-nfl-comments-fire-players-protests