President Trump’s Huntsville, Alabama, speech, which Paul wrote about here, continues to reverberate. One of Trump’s riffs related to the National Football League:
When people like yourselves turn on television and you see those people taking the knee when they are playing our great national anthem – the only thing you could do better is if you see it, even if it’s one player, leave the stadium. I guarantee things will stop.
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. He is fired.”
Liberals have responded with predictable hysteria in defense of Colin Kaepernick’s (and others’) First Amendment rights. NFL Commissioner Roger Goodell issued a statement that criticized Trump without, however, mentioning the National Anthem issue, which suggests how sensitive it is to the league’s hierarchy.
It is entertaining to see liberals flip-flop back and forth when it comes to the First Amendment. No one questions that athletes have a legal right to kneel (or whatever) during the National Anthem. That doesn’t answer the question whether an athlete’s employer can, or should, fire him for doing so.
Many liberals are in favor of firing employees who voice controversial opinions, as long as those employees are conservatives. There are many examples of this, from Brendan Eich to James Damore. Liberals have mounted any number of campaigns to get conservatives fired, to boycott their employers, and so on. They love to point out that the First Amendment applies only to government, and doesn’t govern an action by a private employer. But they squeal when the shoe is on the other foot.
One basic question is whether an employee’s voicing of controversial opinions damages the employer’s business. Employers certainly shouldn’t fire employees simply for opinions they hold, or for legal contributions they make to candidates or causes. But the case of kneeling football players is different. The whole point of refusing to rise for the National Anthem is that it is a demonstration, intended to impact tens of thousands of live spectators and, potentially, millions of television viewers. What if it impacts them by causing some to turn off the television or, as Trump recommended, walk out of the stadium? An on-field, in-uniform demonstration is an entirely different matter from political activity that an athlete (or anyone else) engages in on his or her own time.
So I would have no problem, in principle, with an NFL team firing or suspending a player whose conduct damages the team’s, or the league’s, goodwill. In fact, teams and sports leagues do this frequently, as players like Ray Rice, Adrian Peterson, Pete Rose and Johnny Manziel can attest. Usually, but not always, such disciplinary action involves conduct that is illegal.
That leaves, obviously, the question of contract rights. Very few employees have written contracts, but professional athletes do. As a legal matter, the NFL’s player agreement controls the Colin Kaepernick-type situation. It undoubtedly contains language governing when a team can suspend a player or terminate his employment. Whether that language would be interpreted to cover the case of a player who kneels or stays seated during the Anthem, I have no idea.
But if they can do so, I would have no objection to a sports team suspending or firing a player whose public, on-field, in-uniform conduct damages the team’s goodwill.
PAUL ADDS: A couple of points. First, I don’t think the President of the United States should be encouraging employers to fire people for engaging in political expression. If it makes business sense to engage in such firing — and this was not President Trump’s argument — NFL owners are capable of making the business decision without advice from the president.
Second, the “damaging the employer’s business” argument is treacherous terrain. Lots of businesses cater primarily to leftists. I would hate to see these business fire employees who express conservative opinions or refuse to deal with vendors deemed politically incorrect.
This potential problem exists even in sports. NFL fans may be, for the most part, conservative or center-right. But what about NBA fans? They are younger, “hipper,” and more likely to lean left. In cities like Washington, Boston, New York, and San Francisco, the fan base probably does more than merely lean in that direction.
To take an extreme example, consider the Washington Mystics, a WNBA team. In the unlikely event that a Mystics player or employee spoke up for a conservative cause or against a cause of the lesbian-left, the Mystics could plausibly justify firing the player or employee on the theory that her speech is bad for business.
This is a road I don’t want America to go down.
John is careful, near the end of his post, to distinguish between what players say off the field and what they do while on the field and in uniform. Once the high-profile firing starts, I’m not convinced the distinction will hold.
Moreover, from the perspective of players like Colin Kaepernick, standing for the National Anthem constitutes making a political statement while in uniform, just as much as kneeling does.
The NFL is losing some viewers (no one knows how many) because of the disrespect to America displayed by a few of its players. If it starts firing these players, it will also lose viewers. It will also alienate players who like and/or sympathize with the discharged players, even though they themselves choose to stand during the Anthem.
Either way, the NFL is a cash cow. It can afford to respect the right of its players to express their political views, including by kneeling (or whatever) during the National Anthem. It should do so, in my opinion.