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The Myth That All “Free Speech” Is Constitutionally Protected (Forbes.com) October 2, 2017

Posted by daviddavenport in Op/Eds.

We live in a litigious society, ready to make a federal case out of all kinds of slights and indignities.  We are also quick to claim broad constitutional rights, asserting that whatever we do in the name of religion or anything we say is protected by the First Amendment’s freedoms of religion or speech.  But let’s be clear about this:  a professional athlete taking a knee during the national anthem is not engaged in constitutionally protected free speech.

The First Amendment, like other provisions in the Bill of Rights (the first ten amendments to the Constitution), protects our freedoms from government intrusion.  The Founders, and especially the Antifederalists, feared that replacing the Articles of Confederation with the Constitution created a federal government that was too powerful.  As a consequence, there was a move to establish a Bill of Rights, making it plain that the federal government had no power to intrude upon a whole set of individual freedoms.

The language of the First Amendment states that “Congress shall make no law…abridging the freedom of speech.”  This was later broadened by the courts to include other branches and agencies of the federal government, and ultimately to prohibit all government from limiting speech.  Such abridgement of speech no longer requires the government entity to make a formal “law” since action may also limit speech.  In addition, government is more broadly defined, with a state university, for example, unable to limit speech in ways that a private college might.

Sports leagues and teams are businesses that may establish and enforce all kinds of rules, right down to whether you must tuck in your shirt and what kind of patches you may display on your uniform.  These are not matters of free speech—certainly not of constitutionally protected speech—but rather are business practices that leagues and teams may legally require their employees to follow.  As Commissioner Adam Silver recently reminded NBA teams, the league rules require players and coaches to stand for the national anthem and he expected the rule to be followed.  There is no constitutional right to do otherwise.  It is a matter of dispute whether the NFL has such a rule or merely a policy.

Protestors are quite simply off base when they claim that there is any kind of First Amendment free speech issue here.  Some may wish athletes were free to protest during the national anthem at sporting events, but the Constitution provides no protection for that.  If athletes wished to invoke any sort of legal backing for their action, it would be more in the nature of labor relations law than constitutional law.  Players unions and management might negotiate what freedoms athletes are allowed in this regard, just as all kinds of business practices are negotiated.

Even President Trump’s remarks on the matter do not create a First Amendment problem.  He merely stated that he wished owners would stand up and fire athletes who protested during the national anthem.  Again, this is a matter of labor relations and business practice, not a question of constitutional law or protection.  President Trump, along with everyone else, is free to say what he wishes.

Of course, there are bigger questions to be raised.  Why do we need such a close tie between patriotism and sports?  Even if the First Amendment does not protect the ability of athletes to say or act out what they want, many would like to live in the kind of society where people had such freedoms.  But of course with that comes the freedom for others to protest and object to that speech or action, creating the clashing and jarring of ideas in truly free speech.  Moreover, might owners and leagues be unwise to prevent such speech and protests, even if they are not constitutionally protected?

Kneeling and protesting during the national anthem presents a number of difficult questions, but free speech under the First Amendment is not among them.


To view the column at Forbes.com:


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