Last Wednesday, while Americans were preparing to embrace a weekend dedicated to honoring men and women that died defending their country, National Football League team owners announced a new policy that forbids players from protesting during the national anthem while allowing them to stay in the locker room during pre-game ceremonies.
It sparked a nationwide discussion about first amendment rights with spirited opinions and strong personal opinions on both sides of the issue. But one central question remains. Is this really a first amendment issue?
The first amendment is the cornerstone for the Bill of Rights. It reads, “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 sets the foundation for five guarantees between the government and its people. It is a truly revolutionary idea that a government must serve its people, not the other way around, that a government’s authority is granted by “the consent of the governed.” There is no more appropriate discussion to wage during the 2018 Memorial Day weekend.
The first amendment guarantees (1) freedom of religion, (2) freedom of speech, (3) freedom of the press, (4) freedom to assemble peacefully, and (5) freedom to petition the government. The amendment limits the government’s authority, while protecting the individual’s freedom from that government’s power. But does an employee have the right to free speech at work?
The answer is complicated and depends upon the employer, the type of speech, and the person’s position. In fact, the first amendment prevents the government—not individuals or companies—from limiting free speech.
Employees in the public sector—from government workers and the military to Town Managers, highway workers, and public school teachers—have first amendment rights automatically with certain restrictions based on case law.
In the private sector, these rights are not as well defined. As a rule, private sector employees do not have first amendment protection. The employee does, however, have the protection of anti-discrimination laws, whistle blower protections, and various state and local regulations, but these are not technically “first amendment” rights.
So, can the NFL owners restrict their employees from protesting the government while they are working? The players’ union will almost certainly file suit. Even the NFL owners seem to be divided on their opinions. Ultimately, it will be up to the courts to decide, but it might not stop the protests.
Athletes have a long history of leading social movements, from Jackie Robinson, Jack Johnson, and Muhammed Ali in the civil rights movement to Billie Jean King’s feminist battle. It’s not surprising that former professional athletes have served at all levels of government. Basketball hall of famer Bill Bradley (D) and former NFL quarterback Jack Kemp (R) were even considered during presidential and vice presidential campaigns. A fine isn’t enough to stop a committed athlete.
The bottom line is that private organizations have a right to make rules, and some rules are made to be broken. Boston Tea Party protestors put their lives on the line. Rosa Parks was arrested for civil disobedience. The rule might actually serve to legitimize the protests now that athletes actually have skin in the game. But it probably won’t stop them.
To comment on this story or to contact Southington Observer editor John Goralski, email him at JGoralski@SouthingtonObserver.com.