Author: Bill Bianco
Due to the popular show Game of Thrones, the term "bend the knee" has made its way into public conversations. In the HBO show, the term is basically a submission and a pledge of loyalty to a king or queen. In the real world, the term "bend the knee" has also taken on new significance over the last year. Even if you are not a football fan you probably heard about professional football players kneeling during the National Anthem, which is played before a game is started.
The legal issue that made me curious is whether "bending the knee" at a football game as a form of political protest is protected free speech under the First Amendment of the United States Constitution. Seems like everyone has a "knee jerk" reaction to this issue. However, protected rights, such as free speech, are not absolute. You have probably heard of the saying "You cannot yell fire in a crowed movie house" (provided the theater is not actually on fire!).
First we must determine what type of speech it is? For example commercial speech and political speech differ greatly in what the government can restrict. Football players bending the knee is a form of political speech. Colin Kaepernick, the first player to bend the knee stated he kneeled because he felt he cannot support a country that he alleges "oppresses black people and people of color". Other football players followed his lead.
Another distinguishing factor that needs to be made about a player’s protest on a NFL field is that the player is not a government employee. Thus, does First Amendment protection extend to a non-government entity? If a team prevents a player from protesting on the field it is clearly not a government act. The player is an employee of the team. There are many cases that concern government employees’ rights and responsibilities with regard to free speech. Surprisingly, case law provides little guidance to private employees.
People who do not support Kaepernick’s method of protesting believe that NFL teams or even the overall NFL organization, a private business, can dictate what its employees can do and say during the course of employment. Please note, from my observation most people do not dispute Kaepernick and other's right to protest, they just question the time and place.
Is standing for the National Anthem part of a professional football player’s job? The National Anthem has been played before sporting events at every level of play for over a hundred years. It is generally understood that a player dressed in his game uniform and present on the field is "working". By kneeling is the player being insubordinate?
Another question to ask is whether the player’s action materially and substantially interfered with his job performance and working relationships. Obviously, a player is not hired for the way he presents himself for the National Anthem. Does not standing hurt a player’s working relationship with other player or coaches? Most commentators do not discuss whether this type of civil protest disrupts "the locker room" atmosphere.
A private company cannot prevent an employee from speaking about the unionization process or deny an employee the ability to vote, but to make a political statement within the boundaries of a non-government job the jury is still out, or should I say the U.S. Supreme Court has not ruled. For now, it is safe to say that a company can preclude political activities during work hours, but what about a simple jester of kneeling during the National Anthem or wearing a armband during working hours to promote your cause? Perhaps it will take a team actually firing a player for kneeling and a subsequent court case to find the answer. But, if the player is good, he will not be punished because we know the bottom line is winning and if he wants to kneel or run across the field naked he will stay on the team if he can help the team win. After all, professional athletes, celebrities and Jon Snow live by different rules than the rest of us.
Author: Bill Bianco