Employees, Trump and the First Amendment

Published 9:50 pm Monday, September 25, 2017

To kneel or stand? That seems to be the question these days.

It’s a question made more controversial after President Trump weighed in on NFL players who refuse to stand for the national anthem.

Oddly, the president has devoted quite a bit of time to this issue. At a rally Friday, he said: “Wouldn’t you love to see one of these NFL owners when somebody disrespects our flag to say get that son of a b—- off the field right now, out, he’s fired, he’s fired.”

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Those words weren’t received too kindly, as more than 200 players protested this past weekend by choosing not to stand for the anthem.

More than likely, most Americans would probably prefer that players stand for the anthem. But most probably would not agree that players who don’t stand should be fired. Trump took an issue that was divisive — but largely stayed off the front pages — and thrust it into people’s faces. This does not appear to be smart politics.

Trump has often struggled with the First Amendment, and he again seems to lack a real understanding of it. He has a First Amendment right to criticize the NFL and its players. It might seem inappropriate for a president, but it appears to be legal. But that doesn’t mean it carries any significance. His title as president does not give him any legal authority to determine who is hired or fired at a private business.

The players also have a right to protest during the national anthem, as long as their employer allows it. The NFL is a private entity, which means it can decide how much free speech it wants to embrace. The players’ protests on the sidelines of a football game are not the same as someone protesting on a public sidewalk or on their private property. It’s the same as you exercising your First Amendment rights while at your job.

You have a right to say what you want (with some exceptions), but that doesn’t mean your private employer can’t fire you for it. It just means you are protected from the government trying to suppress your speech.

Oli­ver Wendell Holmes Jr. is often credited with this quote: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.”

That’s largely accurate.

The players choosing to protest during the anthem are being allowed to do so by the NFL. Should the NFL decide to stop these protests, it likely can. But it certainly does not have to because Trump says so.

We think the president would be wise to focus his energy where he has direct and lasting influence — namely, on being president.