Let Workers Speak — NFL Protest policy is Corporate Censorship
Let’s put this out there: The NFL is not violating the First Amendment.
Let’s put this out there: The NFL is not violating the First Amendment.
Surprising words coming from a free-speech absolutist like myself, but it’s true. The NFL’s decision to fine teams whose players do not stand for the national anthem does not violate the First Amendment.
I want to be clear, though. This doesn’t mean I think the league was right or that it isn’t violating its players’ broader free speech rights, or that the league isn’t caving in to the more militaristic segments of American society with which it has long been in bed. The league has essentially decided to shut its players up: It orders players to stand during the anthem and end their protest, but offers no comment about free agents Colin Kaepernick and Eric Reid being black balled for protesting. This is an issue of conscience that has racial underpinnings, but it isn’t a First Amendment issue — not given the history of how the First and 14th Amendments have been interpreted.
The First Amendment only prohibits government action. “Congress shall make no law,” the Amendment reads, “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Initially, the courts limited the amendment’s restrictions to the federal government, allowing the states to impose their own restrictive speech and protest laws, but the 14th Amendment, passed after the Civil War and the end of slavery caused the courts to reconsider.
The 14th Amendment, ratified in 1868, eventually was used to expand the prohibition against government interference to state governments and all branches.
Mary Barbara McCarthy, in a 1947 article for the Notre Dame Law Review titled “Application of the First Amendment to the States by the Fourteenth Amendment of the Constitution,” writes that it was the 1940 Supreme Court decision in Cantwell v. Connecticut that ultimately expanded the First Amendment’s application to state governments. The court ruled that “the fundamental concept of ‘liberty,’ embodied in the Fourteenth Amendment, embraces the liberties guaranteed by the First Amendment, which declares that Congress shall enact no law respecting an establishment of religion or prohibiting the free exercise thereof.”
The court said “the Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact laws which will deprive individuals of their liberty without due process of law,” she writes, meaning that the court could not infringe upon religious liberty without a legitimate cause. (Behavior could still be policed, the court said.)
Three years later, the court ruled on several cases and made it clear that its interpretation of the 14th Amendment’s prohibition on state government infringement applied to all facets of the First Amendment, including its speech clause.
Businesses, however, are not viewed by the courts as government actors, which exempts them from the language of the First Amendment. They can regulate their employees’ speech in the workplace and, in some cases, outside the workplace if the speech affects business operations. This is a point both liberals and conservatives like to make when it suits their beliefs. It’s about branding, both sides will say, and not wanting to offend consumers. Everyone can protest or say what they want, but there are consequences.
This gives business too much power. The loss of livelihood is tantamount to loss of life, potentially creating a downward spiral many are powerless to stop. Athletes and celebrities like Colin Kaepernick, Phil Robertson (of Duck Dynasty), and Mel Gibson may be insulated from the worst consequences by the wealth they’ve accumulated, but the rest of us are not. Asking us to choose between conscience and survival does not violate the letter of the First Amendment, but it does violate its spirit — if you look at it as a defense of conscience, as I do.
Think about what the First Amendment covers: religious belief, the right to speak freely and write freely, the right of association, of protest, of criticism of government. Those are core rights and define what conscience means.
Back in 2013, Robertson in an interview with GQ, compared with bestiality — a standard fallacy pressed by religious conservatives. Robertson was suspended from his then popular and ubiquitous show, with A&E saying that Robertson’s “personal views in no way reflect those of A+E Networks, who have always been strong supporters and champions of the LGBT community.”
I was critical of A&E at the time — not because I supported Robertson, but because of the impact these kinds of corporate actions have on free speech, which should exist beyond the boundaries of the First Amendment.
It’s a complicated issue, but I think it’s analogous to what the players have been doing in the NFL. A&E suspended Robertson because he hurt their brand, making the implied argument that he is a representative of A&E both on screen and elsewhere. The NFL has focused on Kaepernick’s on-field — but pre-game actions — but it is disingenuous to assume they would be any less punitive had he only protested off the field. History is littered with mid-level athletes who were shunned by the leagues based on their political activism.
This is not theoretical. We’ve witnessed the sanctioning of academics who tweet unpopular or unseemly opinions, the banning of artists from radio in anticipation of public outcry over what they said, workers fired for social media posts unrelated to their jobs. These all fall outside First Amendment protections, but create a hostile environment for free expression.
And both liberals and conservatives have been guilty of allowing corporate entities to infringe on our human right of expression and conscience.
I will ask the question I asked five years ago:
“Are we really comfortable having corporate America police speech and political activism, and having them judge the art and entertainment that is appropriate for the rest of us?”
I continue to find this willingness among many on both sides to grant our corporate overlords the right to silence us, as long as they are silencing speech we don’t like.
Do we want corporations “acting as our moral guardian(s),” as cultural critic Jon Katz wrote in 1997, and ultimately controlling what we watch, read, and listen to?
Conservatives are fine with the NFL’s new policy because it comports with their unwillingness to grant players — or any worker — the agency to stand up and speak for themselves, to protest and challenge power. They are being shortsighted, as liberals have been too many times in the past.