The Legal Lowdown on Kneeling During the Anthem

Ever wonder, or get into a debate with others about whether NFL players who kneel during the national anthem are protected by the 1st Amendment?

Well, let’s settle that question. Although, as often is the case in the legal world, the answer isn’t as simple as just a “yes” or “no.”

First, it’s important to note that the Constitution and the Bill of Rights protect people in America from interference from the government and not from private employers, like NFL teams. So, the answer to the question, “does the First Amendment protect NFL players who kneel during the national anthem?” depends on the corresponding question “from what?”

Now, no one is seriously considering arresting the players for expressing themselves by taking a knee - that would be a blatantly unconstitutional action on the part of the government. But at the same time, this doesn’t mean that as non-governmental organizations, the NFL or its teams can’t exercise control over what happens on their private property, i.e. their stadiums, or over what their employees do as representatives of their organizations, wearing their logos, while they are essentially at work and being paid for their time.

Indeed, most people would not be allowed to participate in a political protest while on-the-clock, especially while wearing their company's logo. And they wouldn’t be allowed to use a scheduled television appearance where they were supposed to represent their company in order to engage in political speech of their own choosing.

Ultimately though, the players’ individual contracts and the collective bargaining agreement between their union, the NFL Players’ Association, and the league are the factors determining what the players can and can’t do on the job and in uniform as representatives of their teams and the NFL.

However, there’s another angle here worth exploring. Given the potential power of their fame, the players who have been taking a knee may find that they can achieve a bigger impact by speaking out off-the-clock, either in-person at peaceful protests or on social media, especially if they coordinated with each other. For example, Eric Reid has been consistently taking a knee since shortly after Kaepernick started the trend and he has 187,000 Twitter followers. Yet, he rarely tweets about politics. Neither do the following otherwise conspicuous NFL anthem protesters: Kenny Stills (120,000 followers), Marcus Peters (58,100 followers), and Michael Bennett (231,000 followers).  Between them that's a combined audience of roughly 409,000 Twitter followers whom they rarely, if ever address with political messages.

And just imagine if these players organized a peaceful march on Washington.

Hopefully one or more of them will decide to advocate against institutional child abuse. I’m sure that they could make a huge difference for kids like Justina Pelletier, who recounted her horrible suffering in this Edward-R.-Murrow-Award—winning interview:

The author, Marty Gottesfeld is an Obama-era political prisoner. To learn more about his case or donate to support him, please go to FreeMartyG.com.