A right to make a fool of himself

The controversy over the NFL’s indulgence of players protesting the national anthem might be treated as a time to learn. One might learn something from Heather Mac Donald about the mythology underlying Colin Kaepernick’s protest “against the incredible number of unarmed black people being killed by the police.” In Kaepernick’s honor, I say that one deserved a high Colinic flush. Instead it metastasized with the invaluable assistance of Barack Obama and his acolytes in the administration and in the media.

One might learn something about the NFL’s standard operating procedure for the national anthem. According to the league’s operations manual: “The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking….Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses.” While the NFL has enforced rules against other instances of individualized expression by players wearing their team uniforms, it has somehow indulged the Colinic metastasis.

One might learn something about the extent of the First Amendment’s protection of speech. As interpreted by the Supreme Court, of course, the protection generally protects speech against restrictions by governmental entities such as cities, states and public universities. There are wrinkles and exceptions galore, of course, one of which applies to governmental paramilitary organizations such as police and fire departments, where the need for discipline and cohesion is recognized.

In one of the highlights of our work together representing students and teachers with speech claims in the university setting, John and I came up against the citation of this exception by University of Minnesota lawyers defending the suppression of speech. The university police had been called out to censor an exhibit by history professors on the campus of the University of Minnesota at Duluth. The university lawyers “explained” that the exhibit posed a threat to the order of the campus regime. We somehow managed to persuade the court to distinguish the University of Minnesota from a paramilitary organization.

One might learn that the First Amendment generally does not protect speech rights in the setting of private employment. A private employer can generally limit an employee’s right to express oneself at work. The NFL, for example, relies on its authority to regulate player speech in a myriad of ways with which we are all familiar. It has nevertheless recognized the Colinic exception to these regulations.

Writing at the site of Center of the American Experiment, John Hinderaker quotes my friend and former colleague Teresa Collett of the University of St. Thomas School of Law in Minneapolis. As is her wont, Professor Collett is trying to do some teaching in a teachable moment. She explains:

I don’t watch football. I don’t care about football. But I do care about constitutional literacy. Please stop saying football players have first amendment rights to disregard the direction of their private employers while engaged in privately sponsored activities — which is what NFL football games are. They have no more constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any “rights” they have are based on their contracts and employment law.

On the one hand, we have Professor Collett teaching something true about the scope of our Fist Amendment speech rights. On the other hand, we have Star Tribune sportswriter Michael Rand triumphantly declaiming:

A gameday manual can say what it wants. So can a president, for that matter. At the end of the day, we’re still back to the First Amendment — the trump card, so to speak — which carries just a little more sway than a logistical document or a tweet.

“Congress shall make no law 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.”

Free speech leads to uncomfortable conversations — ones that Rodgers, correctly, says we need to be having. Debating whether a league rule means players shouldn’t be able to start that conversation probably means you don’t want to have that conversation.

Enough false flags. The real one is too important.

The First Amendment protects Michael Rand’s right to display his ignorance and make a fool of himself in the pages of the Star Tribune. One might learn that Rand therefore needs someone to protect him from himself. (Editors?) Or one might learn you can’t believe everything you read in the Star Tribune.

UPDATE: Michael Rand responds to me via Twitter.

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