Law Quarterly

Take a Knee for the First Amendment

By Magdalena Kusz

Dec
11

Undoubtedly one of the greatest things that many Americans take pride in is the First Amendment’s protection of freedom of speech. Giving people the right to freely express themselves through speech, press, or forms of protest, this amendment has been the backbone of a nation founded upon democratic principles. And what is comparable to people’s love of freedom? The love of football, of course. However what happens when the two ideas converge on the field in front of thousands of spectators and millions of fans all across the nation?

Back in 2016, former professional quarterback Colin Kaepernick initiated the National Football League protest by sitting down and later kneeling during the singing of the National Anthem. He claimed he could not “show pride in a flag for a country that oppresses black people and people of color,” taking the opportunity to exercise his right to protest the racial injustice (as well as police brutality) he saw overtaking the nation. “To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder,” Kaepernick explained.

Since then, numerous players in the NFL have followed in Kaepernick’s footsteps and showed their disapproval of the unequal treatment of African Americans through protest. Players are continuously taking a knee during the national anthem, while others even refuse to take the field until after the singing is over. Naturally, such acts have caused an uproar of disapproval, specifically coming from the Trump administration. Trump’s public accusations that the NFL was disrespecting the country and his statement suggesting that NFL owners fire or suspend players that do not stand has caused further upheaval because it raised the question of whether or not the NFL can fire players for protesting.

However, many people feel that such a response is uncalled for. According to the First Amendment, players have the right to assemble and protest the continuing injustice. Their right to free speech protects them from administrators, such as Trump, that advise the NFL to fire them over taking a knee in the form of protest. His tweets and public statements have no power to enforce suspension and termination of the players, yet they continue to cause unrest by furthering the controversy since they suggest that the First Amendment rights be disregarded.

A similar episode took place in 1963, in which a group of African American protestors was arrested and later convicted for a breach of peace after they organized a march to object segregation policies in the state. Even though the march was peaceful, policemen ordered it to stop. The marchers did not disperse; instead they took to singing religious and patriotic songs, like the Star Spangled Banner, which led to their arrests. The court later ruled in Edwards v. South Carolina (1963) that the convictions violated the marchers’ rights to a peaceful protest, stating that the state cannot “make criminal the peaceful expression of unpopular views.”

As in Edwards v. South Carolina (1963) —which ruled that state government officials do not have a right to force a crowd of protestors to disperse, many believe that President Trump and other administrators should not enforce NFL players to stop taking a knee during the singing of the Star Spangled Banner. Such a basic principle should not be publicly condemned because doing so debases the meaning of a citizen’s right and threatens the veracity of the First Amendment. Likewise, encouraging individuals to place consequences on citizens that protest in an unfavorable manner would go against the Constitution’s protections: a law professor at Ohio State University stated that it would be “against the law for Trump to threaten government action against a private entity [NFL] in order to provoke the firing of employees.” Thus, players should continue to freely express their opinions without fear that their actions might lead to unfavorable consequences or negative media attention.

On the other hand, people are claiming that because the players represent a private entity, the First Amendment rights do not apply to individual players, thus they very well could be fired for protesting. A Sports Illustrated legal analyst and associate dean at the University of New Hampshire Law School stated that “player’s rights as an employee are largely determined by contract,” and since the contract calls for players to conduct themselves in ways that maintain “public respect” for the game as well as does not “adversely affect or reflect in the club,” firing protesting players could be upheld legally.

The ongoing debate continues to raise issues regarding the basic privileges that American citizens are taking advantage of as they continue to be castigated for it by the President and others whom believe there is a legal breech of contract. Yet the freedom of peaceful protest is an inalienable right that cannot be silenced regardless of who attempts to suppress it, ensuring the liberty of people such as NFL players to continue standing up for what they perceive as unjust and try to bring about change.

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