NFL owners need to play defense to protect free speech
The effort of National Football League owners to move past the contentious national-anthem protests is understandable. Their business is football, not politics, and football fans are deeply split over the decision of some players to kneel in protest during “The Star-Spangled Banner.” In a letter to owners last week, NFL Commissioner Roger Goodell voiced his expectation that all players should stand for the anthem, as well as his hope that a league meeting this week can offer an opportunity to “move past this controversy” and restore football’s ability to “bring people together.”
But when NFL leaders meet Tuesday and Wednesday in New York, their conversation won’t be simply a meeting of business leaders freely deciding how to respond to employee protests that may conflict with corporate objectives. The intervention of President Trump and his White House in the dispute, and the direct and persistent pressure placed on players and owners, add an overlay of coercive government interference in First Amendment rights. Against that backdrop, NFL leaders need to view themselves as a bulwark in defense of core freedoms for their players and all Americans.
Malcolm Jenkins of the Philadelphia Eagles says addressing racism in the criminal justice system will require much more than taking a knee. (Ashleigh Joplin, Kate Woodsome/The Washington Post)
The Trump White House’s response to the protests, which players say are intended to call attention to demands for criminal-justice and police reform, has been harsh and unrelenting. In a September speech, Trump said, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out. He’s fired!’ ” He commented that many NFL owners are “friends of mine” and opined on Twitter: “If NFL fans refuse to go to games until players stop disrespecting our Flag & Country, you will see change take place fast. Fire or suspend!”
The president also tweeted “a big salute” to Dallas Cowboys owner Jerry Jones after his pledge to bench kneeling players. Vice President Pence was dispatched to Indianapolis to walk out of a game when players protested. In addition, Trump tweeted a call to “Change tax law!” on grounds that the NFL is “getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country.” Trump and his staff have repeatedly characterized the protests as unpatriotic, a deliberate effort to overwrite the players’ intended message about criminal justice.
These are not just musings by any protest critic. Trump has maintained that his tweets constitute presidential communications — equivalent to a speech or formal statement. Trump has made clear his hope that NFL players will be punished for acts of peaceful protest. If such punishments were imposed directly by the government — in the form of arrests or fines, for example — they would unquestionably violate the First Amendment. To skirt that constraint, the president seems bent on pressing NFL owners — his “friends” — to exact the punishment on his behalf.
There can be little doubt that Trump’s words are affecting the calculus of NFL owners. One former NFL general manager has said that owners have avoided signing quarterback Colin Kaepernick, the originator of the protests, because it is a team’s “worst nightmare . . . Any time [Trump] wants to change the subject, from health care or whatever, he’s going to come back to this. . . . Does your team’s owner want to deal with that?” When the protests erupted, many owners expressed solidarity with protesting players. It is hard to believe the president’s badgering had nothing to do with their apparent change of heart.
If the president persists, this could become a matter for the courts. Even indirect pressure by the federal government, if it has the effect of stifling speech, can run afoul of the First Amendment. While owners may maintain that their actions are governed solely by personal values or commercial considerations, the president’s influence is impossible to ignore. Supreme Court precedents indicate that if players can prove that Trump’s coercive efforts, overt or covert, influenced owners’ actions — or that owners coordinated in some way with the White House — it could be grounds for a finding that the athletes’ rights have been violated.
In the meantime, power rests in the hands of NFL owners. While the pressures of an irate and intemperate White House may feel hard to withstand, a decision to withdraw support from protesting players will amount to precisely the form of retaliation for speech that the president seeks. Just last week, the president rejoiced in the suspension of an ESPN anchor and threatened to suspend the broadcast licenses of television networks he dubbed “fake news.” The threat to free-speech rights from the White House is unmistakable. If NFL owners do as the president asks, no matter what justification they give, the bedrock principle that the government cannot abridge the free-speech rights of individuals will have been breached.