October 24, 2017

The First Amendment & the NFL

The First Amendment is one of the cornerstones and keys of our democracy. I am rabid about it. Everyone in America has a First Amendment right to free speech, which includes, of course, the right to protest things we don’t like. Governmental actions that limit or abridge it are, at minimum, constitutionally suspect.

That being said, even with respect to actions by governmental entities, there are some limits. As Mr. Justice Holmes said in 1919, “no man has the right to yell ‘fire’ in a crowded theater.”

For three years in the early ‘70s I was the First Amendment lawyer in the Secretary of the Army’s office in the Pentagon. This was during the Vietnam era and lots of Americans chose to protest that war. On more than one occasion I had to tell a military base commander that the First Amendment kept him from totally banning war protests, even on military reservations. And yet, we could and did place restrictions on the “time, place, and manner” of war protests.

Whether we like it or not, there are group of extraordinarily highly paid young men in America who choose to exercise their First Amendment rights in various public ways. We call them professional athletes. I love to watch these guys play ball, but — (even though I actually agree with them on some of the issues they choose to highlight with their protests), in all honesty, I don’t look to any of them for guidance or inspiration on matters of civics.

Nonetheless, these high profile citizens have a clear First Amendment right to speak freely. What they do NOT have the constitutional right to do, however, is insist that you and I watch them, or pay them, to do so during our National Anthem.

There is a time and place for everything and that brief period of time at the beginning of a major sports event has been designated — by the League itself — as a time for patriotic expression. A time to give thanks for a free enterprise system that lets us make money and for a political structure that guarantees all of our constitutional rights, including those articulated in the First Amendment.

Any private, contractual limitation on the expression of those rights at that time and that place and in that manner is not a question of First Amendment rights at all. Rather, it is a question of freedom of contract. And it is up to the NFL to decide whether it will enforce its rule requiring athletes to be on the field, standing up, during the national anthem, or, conversely, whether it will tolerate protests by players or fans at that point in time.

I suspect that the issue will be decided based on economics. If people turn off their television sets, and advertisers cancel their sponsorship, etc., etc., etc., as they all have the constitutional right to do, the League, the Team Owners, and indeed the Players themselves — will all probably decide that they would rather choose a different time, place and manner for the expression of their First Amendment rights and continue to receive those fat paychecks.

Meanwhile, as for our President, surely he has more important things to do than wallow in this quagmire.

– Andy Vickery, Trial Lawyer

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