Some tentative thoughts about the NFL national anthem controversy

|The Volokh Conspiracy |

I don't have firm views about the NFL players kneeling during the national anthem; it strikes me as more of a political, business and ethical question than a legal one and is thus outside my core areas of expertise. But I thought I'd pass along a few tentative thoughts I had on the matter.

1. Just to get the legal questions out of the way, the First Amendment of course doesn't constrain NFL owners from firing employees for kneeling during the national anthem—or, for that matter, from insisting that they kneel, or that they go along with their teammates' views. The First Amendment applies only to government action, and football teams aren't constrained by it. Some state laws, though, may restrict employers from retaliating for their employees' political activity; some apply only to off-the-job speech, but others might apply to on-the-job speech as well (see p. 304). I don't have much to add on that beyond what I said in the article I just linked to; the rest of the items below, starting with No. 3, will generally speak to the ethical question of what should be done, not the legal question of what may be done.

2. I don't think presidents and other politicians should be calling for the firing of private employees for their speech; but while I think such calls are generally beneath the dignity of the office, and outside government officials' proper bailiwick, they are generally the exercise of the politicians' own First Amendment rights. (Compare the reactions by then-Mayor Rudolph Giuliani and then-first-lady and expected senatorial candidate Hillary Clinton to the anti-foreigner, anti-gay, and anti-New York remarks by Atlanta Braves player John Rocker in 1999.) When the statements carry a threat of governmental retaliation if the employee isn't fired, then they stop being protected and may themselves become First Amendment violations. See, e.g., Okwedy v. Molinari (2d Cir. 2003). But I haven't seen such a threat in the Trump tweets I've read, and it seems unlikely to be implicit, especially since the NFL has little legal interaction with the president.

My guess, incidentally, is that Trump's statements are highly unlikely to lead to any firings and may not even have been aimed at doing so—instead, they are an attempt to make a political point with the public and thus play into Trump's broader political plans. Time will tell whether they have succeeded in this mission or have backfired.

3. As I understand the custom, standing for the national anthem is a sign of respect for the nation, just like standing in court when a judge enters is a sign of respect for the judicial system. Deliberately and visibly declining to stand is thus reasonably understood as a sign of disrespect for the nation.

It's not a vulgar gesture (compare, say, giving the flag the finger). It's not a loud gesture. Like with much symbolic expression, people can interpret it in many ways; consider the controversy about how displays of the Confederate battle flag should be understood. But I think such kneeling is reasonably understood not just as a deliberate gesture of disagreement with the nation's policies but also as a deliberate gesture of disrespect.

Football, like other forms of entertainment, trades on public goodwill; so do football players, like other entertainers. Unsurprisingly, fans who believe players are disrespecting something important to the fans will be upset with the players and the teams. And that is especially so when the players are seen as disrespecting something connected to the fans' identity—whether the fans' country, the fans' race, the fans' religion, the fans' sexual orientation or whatever else.

4. The players are using the national anthem as a means of conveying a political message. But the custom of playing the anthem, and of having people stand during the anthem, itself conveys a political message. The players may thus be "politicizing" the event in the sense of making an extra political statement, and one that's especially noticeable because it's unusual. But the event was political to begin with, even if the political force has in some measure faded through repetition.

5. People understandably resent when people whom they've paid to do something, and whom they are watching in the anticipation of doing that, take over part of the event with their own political message.

To give an analogy from my own life, faculty often appear onstage during graduation. If I displayed a slogan while doing that (even just briefly), or waved whatever flag I wanted to wave, people in the audience might be understandably annoyed. They paid (indirectly) a lot of money to watch a graduation, not my own political expression. My employers might understandably be annoyed as well. (I think the point holds regardless of whether I teach at a public or private school, but for the sake of analogy assume I'm teaching at a private school.) Likewise if a player appears on the field wearing a Confederate patch, or expressing his views about abortion, or kneeling during the national anthem.

6. This having been said, it seems to me the players have a particularly strong basis for being entitled not to stand if they so choose: They aren't simply trying to say something—they're trying to abstain from being pressed into saying something.

They aren't just choosing between expressing nothing and (on employer time and with a vast employer-supplied audience) expressing their own message. Rather, they have to choose between being seen (by a vast employer-supplied audience) as expressing something they don't believe and visibly abstaining in a way that expresses something else (again, in front of a vast employer-supplied audience).

It's one thing to expect someone not to express a political view while on the clock, especially if he is free to express it on his own time. It's a graver imposition, I think, to demand that the person express a political view (or be seen as expressing it), even when he is on the clock.

It might be something we would normally demand of, say, spokespeople or others who are paid to convey an organization's message; if you're paid specifically to express, say, the ACLU's or the NRA's view, you have little ethical basis for refusing to express those views. But it isn't something we should normally demand, I think, of most employees. In that respect, a football player who wants to refrain from standing during the national anthem may have a stronger claim than one who wants to sing his own preferred song, or wear his own preferred flag on his uniform.

7. One analogy, just because it's always helpful to think how things might come out from the other political side: Say that some football team tells its players to wear rainbow pins as a sign of support for gay rights, and one of the players declines.

He isn't asking to wear, say, a "homosexuality is an abomination" pin; his views on gay rights may be complex (perhaps he supports gay rights in some measure but thinks the rainbow pin has come to symbolize a broader view that he doesn't endorse). He just wants to abstain from wearing the pin, though his not wearing the pin will indeed be seen as sending a message (perhaps even more obviously than wearing the pin, alongside all the other teammates, would have).

What should we think about this? True, his not wearing the pin might alienate some fans who view the action as an attack on their or their friends' sexual orientation; likewise, not standing during the anthem might alienate some fans who view the action as an attack on their country. Again, focusing on ethics rather than the law, should the employer tolerate both refusals, just one of them, or neither?