Omar Bennett
Colin Kaepernick's silent protest during the national anthem has sparked a debate about the First Amendment and whether it protects him from NFL disciplinary action. While the right to free speech is a fundamental right for US citizens, it is not absolute. Private employees are generally not protected by the First Amendment unless a state enacts a statute prohibiting private employer actions restricting free speech. The NFL is incorporated in New York, a state that lacks such a statute. However, some argue that even if Kaepernick was a government or public employee, punishing him for his protest would likely be unconstitutional under the Pickering-Connick test, which considers whether the employee spoke as a citizen on a matter of public concern and whether their free speech interests outweigh their employer's efficiency interests.
| Characteristics | Values |
|---|---|
| First Amendment protection | The First Amendment does not protect players from NFL disciplinary action |
| Right to free speech | Explicit but not absolute |
| Private employees | Generally not protected by the First Amendment |
| State action | The First Amendment applies to state action |
| Private employer actions | Free speech may be restricted by private employers |
| Private employer statute | A state can enact a statute prohibiting private employer actions restricting free speech |
| Government employees | The Supreme Court stated that employers need a significant degree of control over their employees' words and actions |
| Pickering-Connick test | A two-part inquiry in which plaintiff-employees must show that they spoke as citizens on a matter of public concern and that their free-speech interests outweigh their employer's efficiency interests |
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What You'll Learn
The First Amendment does not protect players from NFL disciplinary action
In the 2006 case addressing first amendment protection of government employees, Garcetti v. Ceballos, the Supreme Court stated that employers “need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of... services”. The NFL's pursuit of profit is undoubtedly one of its top priorities. For example, the massive on-field apparel rights contract it has with Nike cannot be overlooked when scrutinising the NFL's strict adherence to restricting speech that may interfere with player uniforms.
For the sake of argument, even if Kaepernick was a government or public employee, the NFL and 49ers were his government employers, and his protest was considered speech as opposed to conduct, requiring Kaepernick to observe the national anthem or punishing him for not doing so would likely be unconstitutional under what is called the “Pickering-Connick test”. The Pickering-Connick test is a two-part inquiry in which plaintiff-employees must show that (1) they spoke as citizens “on a matter of public concern” and (2) “their free-speech interests outweigh their employer’s efficiency interests”. When contested speech is made pursuant to an individual’s official employment responsibilities, the speech is credited to the individual as an employee and not as a citizen and therefore is not under the First Amendment’s protection.
Political protests are a legitimate form of non-violent speech and are protected by the First Amendment. When Kaepernick took a knee, it was not in opposition to law enforcement or the military, nor was it disrespectful to the United States. It was in protest of the pervasive racial injustice that still remains in the country.
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The First Amendment applies to state action, not private citizens
The First Amendment of the Constitution does not protect players from NFL disciplinary action. This is because the First Amendment applies to state action, not private citizens. Private employees are generally not protected by the First Amendment unless a state enacts a statute prohibiting private employer actions restricting free speech. The NFL is incorporated in the state of New York, a state that lacks such a statute.
In the 2006 case addressing first amendment protection of government employees, Garcetti v. Ceballos, the Supreme Court stated that employers “need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of . . . services”. The NFL's top priority is undoubtedly the pursuit of profit. For instance, the massive on-field apparel rights contract it has with Nike cannot be overlooked when scrutinizing the NFL’s strict adherence to restricting speech that may interfere with player uniforms.
However, it is worth noting that even if Kaepernick was a government or public employee, and his protest was considered speech as opposed to conduct, requiring him to observe the national anthem or punishing him for not doing so would likely be unconstitutional under what is called the “Pickering-Connick test”. The Pickering-Connick test is a two-part inquiry in which plaintiff-employees must show that (1) they spoke as citizens “on a matter of public concern [and (2)] their free-speech interests outweigh their employer’s efficiency interests”.
The ACLU of Mississippi has criticized the move, explaining, “Whatever you may think about Nike or Colin Kaepernick, political protests are a legitimate form of non-violent speech, and are protected by the First Amendment. When Kaepernick took a knee, it was not in opposition to law enforcement or the military nor was it disrespectful to this country. It was in protest of the pervasive racial injustice that still remains in our country.
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The NFL's role in society and pursuit of profit
The NFL's role in society is a complex issue, and its pursuit of profit has been a significant factor in its response to Colin Kaepernick's protests. While the First Amendment of the Constitution protects free speech, it does not explicitly shield Kaepernick from NFL disciplinary action. The NFL, as a private entity, is not bound by the First Amendment in the same way as government employers.
The NFL's priority is profit, and its strict adherence to restricting speech that may interfere with player uniforms is driven by its massive on-field apparel rights contract with Nike. Kaepernick's silent protest, by taking a knee during the national anthem, sparked a debate about the NFL's restriction of players' First Amendment rights. His protest was not in opposition to law enforcement or the military but against racial injustice in the country.
The ACLU of Mississippi criticised the move, explaining that political protests are a legitimate form of non-violent speech protected by the First Amendment. They argued that the government does not have the right to retaliate against a government contractor based solely on hostility towards the contractor's political speech. However, the NFL's stance is that it needs a significant degree of control over its employees' words and actions to efficiently provide its services.
Kaepernick's protest has had a significant impact on the NFL's revenue, with his jersey topping sales among all players since his silent protest. This has contributed to the NFL's profits, despite their disciplinary actions. The NFL's response to Kaepernick's protest highlights the tension between its role in society and its pursuit of profit, as it navigates between protecting its brand and respecting its players' right to free speech.
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The Pickering-Connick test
The First Amendment does not protect Kaepernick from NFL disciplinary action. However, the ACLU of Mississippi has argued that political protests are a legitimate form of non-violent speech and are protected by the First Amendment.
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Political protests are a legitimate form of non-violent speech
However, in the case of Kaepernick, his protest could be considered a form of speech as opposed to conduct. If this were the case, requiring him to observe the national anthem or punishing him for not doing so would likely be unconstitutional under the "Pickering-Connick test". This test is a two-part inquiry in which plaintiff-employees must show that they spoke as citizens "on a matter of public concern" and that their free-speech interests outweigh their employer's efficiency interests.
The ACLU of Mississippi has criticised the move, explaining that "political protests are a legitimate form of non-violent speech, and are protected by the First Amendment". They argue that Kaepernick's protest was not in opposition to law enforcement or the military, nor was it disrespectful to the country. Instead, it was a protest against the pervasive racial injustice that still remains in the country.
While the NFL's strict adherence to restricting speech that may interfere with player uniforms is well-known, Kaepernick's protest has actually contributed to NFL revenue, as his jersey has topped jersey sales among all players since his silent protest.
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Frequently asked questions
The First Amendment does not protect players from NFL disciplinary action. However, the ACLU of Mississippi has argued that political protests are a legitimate form of non-violent speech and are protected by the First Amendment.
The Pickering-Connick test is a two-part inquiry in which plaintiff-employees must show that (1) they spoke as citizens "on a matter of public concern" and (2) "their free-speech interests outweigh their employer's efficiency interests".
The NFL is incorporated in the state of New York, which does not have a statute prohibiting private employer actions restricting free speech. Therefore, the NFL is a private employer.
In the 2006 case of Garcetti v. Ceballos, the Supreme Court stated that employers "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of... services".
