WashU Expert: NFL protests are free speech, but not protected by First Amendment

Future presidential action is key to potential constitutional controversy

Though recent protests by NFL players during the national anthem are not protected by the First Amendment by law, they matter as free speech, said Greg Magarian, professor of law at Washington University in St. Louis and an expert on constitutional law.

Magarian shared his thoughts on the recent controversy, sparked by a Sept. 22 speech followed by numerous tweets from President Donald Trump.

In short, employers such as NFL teams could conceivably attempt to thwart their employees, the players, from such public protests as taking a knee during the anthem. However, there is a public expectation, if not a public demand, that people be allowed that chance.

Magarian

“The NFL players’ protests around the National Anthem remind us that the First Amendment applies, as a matter of law, only to government action. Employees of private companies don’t have constitutional rights against their employers. Therefore, professional athletes don’t have a First Amendment right to protest at games. Teams can take actions against players, subject to contract provisions and union agreements.

“Free speech, however, isn’t just a legal guarantee — it’s a social value. We don’t really care if our speech, or the speech of someone we want to listen to, is suppressed by the government as opposed to private action. What we care about is getting to speak and listen. That’s why NFL players’ national anthem protests, even though not protected by the First Amendment, matter as free speech. NFL teams don’t have to respect players’ protests, but they know that many of us would be unhappy if they suppressed the protests. That’s a good thing.

“The public-private distinction cuts both ways. Just as the Constitution doesn’t stop a private employer from punishing protest, it doesn’t stop private people — us — from pressuring the employer to allow the protest. Just as the government can’t punish the protest, it can’t pressure the employer to punish the protest.

“That’s why Donald Trump’s statements about the NFL protest are so troubling. Trump as president can say what he wants and criticize whom he wants. However, if he tries to use the power of his office to pressure a person (like NFL owners) into punishing another person’s speech (like the NFL players’ anthem protest), he violates the First Amendment.”

How far is the president willing to go with the NFL protests, or any protests of which he disapproves? That is the key question.

“So far, Trump’s statements appear not to have obviously crossed the line from advocacy to coercion. A president, however, has more power than anyone, and thus a greater obligation than anyone to be careful about what he says. We should all pay attention to make sure the president doesn’t abuse his office and violate the Constitution by coercing the punishment of speech he doesn’t like.”

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