By Robert Holland
The huge dust-up over the protests of the American flag during the presentation of the national anthem by National Football League players has served to dramatize a massive deficiency in civics education in this nation, particularly with regard to the origin and scope of the First Amendment.
On her new NBC morning show, former Fox News host Megyn Kelly said that as a lawyer, her take on the controversy is the NFL players have a First Amendment right to protest. Kelly is far from alone in voicing that opinion; indeed, it is the default position of TV talking heads. But surely anyone who has studied constitutional law and the history of the American Revolution should know better.
When the Founders were about to replace the Articles of Confederation with a Constitution of national application, a contingent led by George Mason of Virginia advocated for guarantees that centralized government could not trample individual rights. James Madison agreed and wrote the first 10 Amendments to the Constitution, the liberty-protecting Bill of Rights.
The First Amendment states, in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” Clearly, that was a command to the federal government to leave citizens free to express their opinions. Supreme Court decisions eventually extended this curb on governmental censorship to states and municipalities via the 14th Amendment.
The point is that the First Amendment protects free-speech rights from governmental suppression (with a few well-litigated exceptions, such as a “clear and present danger” to public safety). It does not forbid private businesses from enforcing codes of conduct and acceptable speech on their employees, even those making millions to entertain the masses on fields of play.
With its anti-trust exemption and its profiting from stadiums built at enormous taxpayer expense, the NFL undoubtedly constitutes a government-coddled business. However, it remains a private industry, with its teams and league officials fully able to regulate employee expression during work hours.
Indeed, the league’s game operations manual already states that “players on the field and bench area should stand at attention, face the flag, hold their helmets in their left hand, and refrain from talking” during the anthem. NFL Commissioner Roger Goodell and team owners could further clarify the decorum expected and the range of punishments (fines, suspensions, dismissal) for such actions as kneeling, sitting, raising fists, or cowering under the stadium. It is within their power.
The NFL routinely has squelched free expression in the past, notably in threatening to fine players wearing patriotic shoes honoring victims of the September 11, 2001, terrorist attacks and in forbidding the Dallas Cowboys from placing stickers on players’ helmets honoring the five Dallas police officers murdered by a sniper after a July 2016 Black Lives Matter rally. Yet, the league and owners now award a free-speech pass to players to kneel or sit during the anthem as part of their protest against alleged police brutality.
Perhaps in the aftermath of President Donald Trump’s salty critique of what he sees as player and management disrespect of the flag, the NFL sees an opening to display itself as a beacon of freedom within unity, as with the Cowboys’ orchestrated pre-anthem kneeling on the September 25 edition of Monday Night Football. However, if free speech on company time is now to be the ruling principle, the NFL may find itself in an embarrassing pickle if other players decide they wish to showcase their causes during the presentation of colors. For example, what if pro-life players wished to put themselves in prayerful posture during opening ceremonies to call attention to what they believe to be the millions of lives lost in abortion clinics?
The NFL brass may not fully understand the depth of anger among many who have served this nation under the flag they now find disrespected at professional football games. Trump’s off-color “SOB” comment at an Alabama rally—widely considered beneath the office—is not what stokes their discontent. Prominent Tennessee educator J.C. Bowman, who is no fan of Trump, summarized the feelings of many veterans in a Facebook post I quote below with his permission.
“I am totally disgusted by the NFL and their response,” Bowman wrote. “I served in the United States Marine Corps. I saw my Marine brothers put in a box and shipped back from Beirut. I was spit on for being an American in Japan, while serving my country. I have the flag that draped my dad’s coffin. I have what few tokens my Uncle left in this world fighting and dying for his country.
“The NFL is NOT bigger than America,” Bowman added. “And it will find out, entertainment is not politics. They kneel, I don’t watch. And I have had enough of the disrespect shown to the hard-working men and women in our nation, that just happen to love the freedoms provided to all here in America. I don’t care if I watch another game. And I was someone who attended games, watched on TV and bought hats, shirts, and stuff. I am done with that.
“There are legitimate issues in our country, and there are other ways to protest.”
Thank God we still have a First Amendment in this country, and because we do, perhaps even the NFL oligarchy eventually will get the message.
Robert Holland ([email protected]) is a senior fellow for education policy with The Heartland Institute.