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Is Taking a Knee Protected Speech?
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“The constitutionally guaranteed ‘freedom to be intellectually … diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

– Supreme Court of the United States in Street v. New York (1969)

Sometimes the public expression of unwanted ideas reaches directly into our living rooms. When President Donald Trump attacked a half-dozen or so professional football players who, instead of standing during the traditional playing of the national anthem prior to football games, “took a knee” by kneeling on one or both of their knees during the anthem, hundreds more players on national television took a knee in defiance of the president.

Here is the back story.

Last year, a quarterback for the San Francisco 49ers, Colin Kaepernick, began quietly taking a knee at NFL games to protest what he said was the excessive use of force by police. He was the subject of mild but largely below-the-radar criticism by those who thought sincerely that taking a knee publicly during the playing of the national anthem was a sign of disrespect for the flag and the anthem and thus for this country.

When a few of his buddies and former colleagues — he is no longer a member of an NFL team — followed suit for a variety of reasons, all of which centered around the right to protest the policies of the government, Trump saw a political opening.

At a rally in Alabama last month, Trump aggressively attacked the practice of taking a knee. He argued that it was so disrespectful to the American flag and the national anthem that those who had taken a knee should be fired from their jobs.
This pronouncement focused a spotlight on the six or so scattered players who had followed Kaepernick’s lead, and soon hundreds were doing so. The president took their behavior as an affront to him and to the nation, and he persisted in his attacks on the players. Soon, some team owners joined their players in various means of expressing solidarity with those who had taken a knee.

When the players union backed up these silent expressions of political opinions, it argued that all of its members have a constitutional right to express themselves in uniform in their workplace. Do they? The short answer is that it depends on where the players are when they take a knee.

ORDER IT NOW

Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one’s head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.

Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management’s political or patriotic views constitutes interfering with speech. May employers do that?

In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so.
So in states such as Texas, an employee who refuses to comply with an instruction from management to conform to certain behavior in public — e.g., standing during the playing of the national anthem — can be disciplined, as Texas lacks the added protections for individual workplace expressions that a few states provide.

However, even in the states that lack the employee expression protection, if management’s instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.

Thus, in states where the government owns the stadiums or where expressive conduct in the workplace is protected, employees may engage in expressive conduct in defiance of management, as long as their conduct does not interfere with the workplace. Just as the government may interfere with speech for non-content-related reasons — for example, noise at night or safety in a crowd — management may interfere with speech when the speech itself interferes with the business of the workplace.

If team management could show that taking a knee materially interferes with the workplace product — money for the owners resulting from players winning football games — because it chases away ticket buyers or reduces advertising or media revenue or impairs team morale and thus produces poor play, it would have a strong case, even in the states with employee protection laws and even in venues owned by the government.

In the famous flag burning cases a few years ago, the Supreme Court made clear that in America, we have no revered symbols that command orthodox respect. The flag itself represents the right to treat it as one wishes. We are free to respect the flag and to shun those who do not, but we may not harm a hair on their heads.

I am with the French philosopher Voltaire, who, regarding folks who had literally lost their heads, is reputed to have said, “I disagree with what you say, but I will defend to the death your right to say it.”

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Freedom of Speech 
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  1. I agree that players have a right to take a knee or sit or piss during the National Anthem. I also agree that employers have the right to suspend or fire employees who violate workplace rules. From my blog:

    Sep 30, 2017 – Fire Goodell!

    I will not trouble readers with yet another opinion on this mess, but allow me to offer facts. The NFL operations manual states:

    “The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses.”

    If NFL no longer supports this rule, then change it! If it doesn’t like the National Anthem, then don’t play it! Players can engage in any politics they wish to outside of their place of employment. When people show up at work they can’t say or do whatever they want. These players are at work and in uniform. Why was this rule not enforced? Players are fined for wearing the wrong color of socks, excessive celebrating, and making rude gestures. So why wasn’t this rule enforced when first violated a year ago? Will players begin to protest by giving a political speech in front of cameras after every touchdown? What about wearing a “Cops Suck” sticker on their helmet? That would be free speech.

    How can some play the race card in a league that is 68% black supported by white fans who provide the vast majority of their earnings. I agree the problem of income inequality and police brutality needs to be addressed, but only one protested during the eight years when President Obama was in office. Finally, why protest the Anthem, a song about fighting for independence from Great Britain? This only makes sense if a player is a descendant of British Loyalists who sided with the English King during the Revolutionary War.

    After criticism from President Trump, NFL Commissioner Roger Goodell announced: “Divisive comments like these demonstrate an unfortunate lack of respect for the NFL, our great game and all of our players, and a failure to understand the overwhelming force for good our clubs and players represent in our communities.” This is a classic example of institutional narcissism. The Commissioner and his players each earn millions of dollars a year, yet demand respect? They are not volunteers helping the poor. They do not produce food or fight fires or arrest criminals. They are highly paid entertainers who love what they do! Now they are less entertaining, so will earn less as many fans protest by watching another sport or college football instead. 

    Goodell doesn’t seem to realize that half the nation voted for Trump, and they constitute the majority of his fan base. He should have used Trump’s attack as an opportunity to correct the problem, citing the rule on the books and saying it will be enforced in future games with fines or suspensions. Goodell could encourage players to use their wealth to support efforts for political change on their free time, but remind everyone that the NFL is not a political organization and will not be used to promote political agendas. Goodell proved incompetent already and should be replaced by someone who understands business and common sense.

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    • Replies: @Carroll Price
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    but remind everyone that the NFL is not a political organization and will not be used to promote political agendas.
     
    If the NFL is not a political organization, then why did the NFL mandate the National Anthem, (which is clearly political in nature) be played prior to NFL games?
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  2. I agree with the tenor of the article that it is protected speech. I have always found the playing of the anthem at sporting events vaguely fascistic.

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    • Replies: @anonymous
    Playing the anthem before sporting events apparently started during WW II as a demonstration of public patriotism. In those days it made sense--well, sort of anyway. Now? What's the point of playing the anthem before some dumb ball game? It's a tradition which serves no purpose anymore.
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  3. anonymous • Disclaimer says:
    @exiled off mainstreet
    I agree with the tenor of the article that it is protected speech. I have always found the playing of the anthem at sporting events vaguely fascistic.

    Playing the anthem before sporting events apparently started during WW II as a demonstration of public patriotism. In those days it made sense–well, sort of anyway. Now? What’s the point of playing the anthem before some dumb ball game? It’s a tradition which serves no purpose anymore.

    Read More
    • Replies: @The Anti-Gnostic
    It makes a lot of sense, given the role of professional sports in dissipating tribal energy and shoring up a supra-national American identity. Of course, it's not working so well any more.
    , @Carroll Price
    While on the subject of patriotism and for those who may be unaware of it, the Pledge of Allegiance was first introduced to the public in the 1890s for the purpose of uniting the American people (especially Southerners who had recently been defeated by the United States government) in support the Spanish American War which at the time was in the early planning stages, and which began only a short time later.
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  4. The quasi-public forum argument Napolitano makes was rejected a while ago, which is why those of us of a certain age recall that we no longer have Hare Krishna members approaching us in airports and shopping malls. Is a farm that receives federal subsidies a public forum? How about a government contractor’s office? A company renting from a local development authority? Courts sensibly tired of this hair-splitting long ago, so while it’s a colorable debate, the author is just arguing a position, not expounding settled law. The NFL is well on the other side of the line that ended up being drawn in First Amendment jurisprudence.

    I’m glad this activist, touchy-feely judge is no longer on the bench.

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  5. @anonymous
    Playing the anthem before sporting events apparently started during WW II as a demonstration of public patriotism. In those days it made sense--well, sort of anyway. Now? What's the point of playing the anthem before some dumb ball game? It's a tradition which serves no purpose anymore.

    It makes a lot of sense, given the role of professional sports in dissipating tribal energy and shoring up a supra-national American identity. Of course, it’s not working so well any more.

    Read More
    • Replies: @Corvinus
    The participants and spectators of professional sports serves the purpose to entertain. Certainly, energy is expended on the field by the players jockeying for position and in the basement by fantasy football owners mulling over their flex options. In this vein, they are territorial rather than tribal.
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  6. Issac says:

    It takes little courage to defend the members of a wealthy and protected class, giving voice to speech that the left has long internalized. Their speech has been protected, in so far as any other speakers have been protected, since none were jailed for their demonstration. But, as with anyone found to have said an unkind word about a member of a protected class, they are open to be fired by their employer at his or her discretion.

    And if you disagree with this position, I invite you to demonstrate actual courage by sticking up for the Pittsburgh Fireman who was let go for using a racial epithet to describe the Steeler’s Coach. In a nation defined by white privilege as political mace and “white studies,” as legitimate academic pursuit, this claim that the poor millionaire black athlete needs his rights avowed is nothing short of kabuki theater.

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  7. Goodell doesn’t seem to realize that half the nation voted for Trump, and they constitute the majority of his fan base.

    Goodel and Blankfein – doing God’a work.

    There are sixty million deplorables that we know of in this country. We build and pay for their fucking stadiums and fill their fucking seats. And we “respect” the NFL exactly as much as the NFL respects us.

    It’s not the flag that is being disrespected. The protests are about identity politics. The protests disrespect white people.

    Personally, I would prefer that the protests continue. That would be the end of the NFL.

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  8. yeah says:

    “It’s not the flag that is being disrespected. The protests are about identity politics. The protests disrespect white people. ”

    Nail on the head, well said! The flag and anthem are just collateral damage; the aim is at Trump, the election that did not return a democrat to the white house, and of course about identity politics, and it is about mocking non-blacks in the name of race equality.

    Where were these clowns during Obama’s times? Was everything then just picture perfect?

    Yes, let these protests continue. Yes, go ahead, bite the hand that feeds all the way up to the shoulder. Let us see how many millions these clowns then manage to make.

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  9. KenH says:

    I don’t think the judge would be so kind of it was white players protesting the 15-40K annual of rapes of white women by blacks. The judge didn’t have any use for Constitutional and legal nuance when the alt-right rally goers had their Constitutional rights egregiously violated at Charlottesville, but he sure does for black malcontents.

    I believe the NFL has a rule that mandates players to stand for the anthem with the helmets under their left arm. But owing to black skin privilege the NFL refuses to enforce the rule and black players can violate it with impunity. Just like any law on the books that blacks can’t seem to abide by is a bad and “oppressive” law and must be repealed.

    If the NFL wants to allow players to kneel then they can simply propose a rules change to be ratified by team owners instead of wimping and hiding behind the Constitution so they don’t have to discipline black players.

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  10. Corvinus says:
    @The Anti-Gnostic
    It makes a lot of sense, given the role of professional sports in dissipating tribal energy and shoring up a supra-national American identity. Of course, it's not working so well any more.

    The participants and spectators of professional sports serves the purpose to entertain. Certainly, energy is expended on the field by the players jockeying for position and in the basement by fantasy football owners mulling over their flex options. In this vein, they are territorial rather than tribal.

    Read More
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  11. a123 says:

    Main takeaway — in most cases, the employers DID NOT INTEND to suspend, fire, or otherwise discipline their employees, even though as you argue, doing so would be well within their rights in many if not all jurisdictions.

    Instead, what really happened was the U.S. President voiced the opinion that they should.
    Again, no law was apparently violated.

    It’s just extremely fascistic, unnecessary and wasteful politicization, and painfully obscure about the real reasons behind the protest. Apparently, the team managers understand that their players are protesting police brutality and racial inequality. The U.S. President may understand, but the opinions he has voiced do not indicate such (…about much of anything, of course).

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  12. Issac says:

    “It’s just extremely fascistic, unnecessary and wasteful politicization, and painfully obscure about the real reasons behind the protest.”

    Bake that cake, bigot.

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  13. @Carlton Meyer
    I agree that players have a right to take a knee or sit or piss during the National Anthem. I also agree that employers have the right to suspend or fire employees who violate workplace rules. From my blog:

    Sep 30, 2017 - Fire Goodell!

    I will not trouble readers with yet another opinion on this mess, but allow me to offer facts. The NFL operations manual states:

    "The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses."

    If NFL no longer supports this rule, then change it! If it doesn't like the National Anthem, then don't play it! Players can engage in any politics they wish to outside of their place of employment. When people show up at work they can’t say or do whatever they want. These players are at work and in uniform. Why was this rule not enforced? Players are fined for wearing the wrong color of socks, excessive celebrating, and making rude gestures. So why wasn't this rule enforced when first violated a year ago? Will players begin to protest by giving a political speech in front of cameras after every touchdown? What about wearing a "Cops Suck" sticker on their helmet? That would be free speech.

    How can some play the race card in a league that is 68% black supported by white fans who provide the vast majority of their earnings. I agree the problem of income inequality and police brutality needs to be addressed, but only one protested during the eight years when President Obama was in office. Finally, why protest the Anthem, a song about fighting for independence from Great Britain? This only makes sense if a player is a descendant of British Loyalists who sided with the English King during the Revolutionary War.

    After criticism from President Trump, NFL Commissioner Roger Goodell announced: "Divisive comments like these demonstrate an unfortunate lack of respect for the NFL, our great game and all of our players, and a failure to understand the overwhelming force for good our clubs and players represent in our communities." This is a classic example of institutional narcissism. The Commissioner and his players each earn millions of dollars a year, yet demand respect? They are not volunteers helping the poor. They do not produce food or fight fires or arrest criminals. They are highly paid entertainers who love what they do! Now they are less entertaining, so will earn less as many fans protest by watching another sport or college football instead. 

    Goodell doesn't seem to realize that half the nation voted for Trump, and they constitute the majority of his fan base. He should have used Trump's attack as an opportunity to correct the problem, citing the rule on the books and saying it will be enforced in future games with fines or suspensions. Goodell could encourage players to use their wealth to support efforts for political change on their free time, but remind everyone that the NFL is not a political organization and will not be used to promote political agendas. Goodell proved incompetent already and should be replaced by someone who understands business and common sense.

    but remind everyone that the NFL is not a political organization and will not be used to promote political agendas.

    If the NFL is not a political organization, then why did the NFL mandate the National Anthem, (which is clearly political in nature) be played prior to NFL games?

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  14. @anonymous
    Playing the anthem before sporting events apparently started during WW II as a demonstration of public patriotism. In those days it made sense--well, sort of anyway. Now? What's the point of playing the anthem before some dumb ball game? It's a tradition which serves no purpose anymore.

    While on the subject of patriotism and for those who may be unaware of it, the Pledge of Allegiance was first introduced to the public in the 1890s for the purpose of uniting the American people (especially Southerners who had recently been defeated by the United States government) in support the Spanish American War which at the time was in the early planning stages, and which began only a short time later.

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  15. The Judge understands the core issue, which is that nearly all NFL games (maybe all) are played on public property. And when that is the case, then the management and the owners become the agents of the government and since the government can not abridge free speech, neither can their agents.

    I disagree with the judge that the owners might have a case if they could show their product is impaired. If that were the case, the owners and management might institute prayers, which have already been prohibited by the courts.

    The owners’s and management’s remedy is to build their own stadiums and pay for the stadiums themselves. Then they can have control over the players.

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  16. Rich says:

    This is all nonsensical, their “right to kneel.” Is there anyone saying they don’t have this right? The question is actually their nonsensical reasons for protesting. After affirmative action, forced integration, welfare, section 8, the Civil War for crying out loud, is there never enough for these guys? The real reason they are protesting must be that they wish they were White, they just know if their skin was White they’d never get a parking ticket, not have to get up every day and go to work or even take a bath. When is enough, enough? I’ll never watch another NFL game. Ever.

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  17. Most people do not concern themselves with the players’ right to speech. It is the speech with which they are concerned. Speech is a form of expression of beliefs and, as such, it has consequences either of support or non-support of said beliefs. Here, the non-support consequences are withdrawal of approval of the players and the NFL.

    My position is that you have your right of free speech and I have my right to never support you again for what you said. Who can argue with that?

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  18. Pat Boyle says:

    I have a simple solution to this controversy. Eliminate blacks from professional football. This solves many problems at once.

    First of all blacks are always complaining. They think they are oppressed. This is utter nonsense of course, but they cannot be dissuaded by rational argument. If you want to have peace and orderliness on or around the gridiron we need to ban blacks from the playing field.

    Anyone who knows any US history understands that the Chinese had been oppressed in the American West. Yet the Chinese do not complain nor do they rape, rob and murder either. As it happens the Chinese are rather too small to play American Football. They are one of the well behaved races but alas not one of the big races. But no matter. Whites are as big as blacks and probably stronger. Whites are not a fast as blacks of course. But if there are no blacks in the game everyone will be equal, more or less, in foot speed.

    Most pro football players were formerly college football players. But blacks are less intelligent that whites or Asians. They struggle with a standard college curriculum. This problem is also solved by not having blacks on the football field.

    I imagine that teams will try to sneak in some blacks. This is a problem but no worse than the problem of performance enhancing drugs. We could devise some genetic tests that detect African ancestry.

    Most of the paying customers in the stands are white. Many whites are tiring of the antics of the black players. Just define football as a sport for whites and attendance should rise. It’s good business.

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