Nee Law Firm
Kneeling & The 1st Amendment by Kevin Diehl
With the kneeling and the protests underway throughout the NFL, the First Amendment is getting a lot of press lately. So let’s take a closer look at what that amendment actually says and what it means.
The First Amendment is one of the ten amendments that make up the Bill of Rights. When the Framers were writing the Constitution, they were seeking to establish a stronger central government than had previously existed in the colonies. The American people, having just fought a long war with Great Britain to get rid of an oppressive government, were in no mood to surrender their “God given rights” to another strong government, not even one that was duly elected by the people.
To get the Constitution ratified, the Framers added these ten amendments to specify exactly what rights belonged to the people – rights that the government could not take away.
Here’s what the First Amendment says in its entirety: “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 clause of the amendment gives us our freedom of religion (more on that, hopefully, in a future blog). The second clause is the part that is getting the attention these days and the one we’re concerned about here – freedom of speech.
In countries all around the world, people can be put in prison simply for speaking out against the government, or for expressing some dissenting viewpoint. That doesn’t happen here. Even Americans who know little about the Constitution know that a fundamental aspect of American citizenship is that “we have a right to free speech.”
That’s the phrase that is often repeated by those who defend the players that are kneeling on the sidelines during the National Anthem – “They have a right to free speech.”
And that statement is correct – the players do have freedom of speech. But what, exactly, does that mean?
It means that the government cannot abridge the players’ right to express their protest because it is done in a peaceful manner that does not destroy property or threaten the safety of others. Simply put, the government cannot decide to arrest the players for kneeling during the Anthem because to do so would violate their First Amendment right to free speech.
But here’s where the confusion seems to arise. Yes, the players have a right to protest, and the government cannot abridge that right. But that doesn’t mean there aren’t possible repercussions for the protests. If the owners of the teams – the people who employ the players – were to decide they don’t like the type of publicity that comes with the kneeling, they could terminate the employees – the players – without violating the players’ First Amendment rights.
The same would apply for almost any one of us in our own jobs. Let’s say that during the last presidential election a person working for a delivery company wore a red “Make America Great Again” hat to all the front doors on her route. She’d be exercising her freedom of speech, but the delivery company probably wouldn’t be happy that its driver was offending potentially half its customers. The company would not be violating the driver’s free speech rights by firing her if she refused to remove the hat.
The same goes for a cashier wearing an “I’m With Her” button on his lapel. He has a right to wear the button on his own time, but if he wears it on the job, the company can say, “Lose the button or lose your job.”
Because NFL players are under individually negotiated contracts, it would be a more complicated issue to terminate their employment, so it’s not likely that the owners are going to fire players en masse. But the point to remember here is that while the players – and all of us – have a right to free speech that cannot be abridged by the government, that protection does not extend to the relationship that we have with our employers.
by Kevin Diehl