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What the NFL’s new rules for anthem protests really mean for the First Amendment, according to experts

A new national anthem policy enacted May 23 addresses controversial protests by NFL players. (Video: Reuters)

Since it was announced Wednesday, the NFL’s new policy requiring players to stand for the national anthem on the field or wait in the locker room, has done little to quell the debate that has grown into one of the country’s most divisive issues over the past couple of years.

The rules, which stipulate that the league could fine teams for players who don’t follow the guideline on the field, are a concession to some of the league’s owners, fans, and of course, President Trump, who say they believe that players should stand instead of kneeling during the anthem. And it is seen as a rebuke of the many players who made the silent protest of police brutality such a flash point of the league last season.

But it also seems to leave room for players to continue their protest as long as they are off the field, a detail perhaps that will upset some of the most fervent members of the Trump cohort. The president weighed in on Thursday, saying NFL players who do not stand for the national anthem maybe “shouldn’t be in the country.”

Malcolm Jenkins, a Pro-Bowl safety for the Philadelphia Eagles and a vocal advocate for social justice initiatives, harshly criticized the decision along with teammate, Chris Long, saying that he believed it to be an infringement of the players’ rights.

“What NFL owners did today was thwart the players’ constitutional rights to express themselves,” Jenkins said in a statement.

Is Jenkins correct? We talked to constitutional law experts to suss out what protections NFL players — private employees of private companies — have to express political views.

The NFL can fire players, but it won't be easy. (Video: Meg Kelly/The Washington Post)

Do NFL players have First Amendment rights on the football field?

The short answer is no. NFL teams are private companies, making the First Amendment a mostly moot point. The players can be subject to discipline or termination as employees if they don’t follow league rules.

“The First Amendment doesn’t apply to private institutions,” Erwin Chemerinsky, the dean of Berkeley Law and a constitutional law expert told The Washington Post. “Private employers can fire employees for their speech without having to worry about the First Amendment.”

Are there any other statutes or laws that the league could violate with its new rules?

The league is bound by more than the constitution, of course, including contractual obligations and agreements made with the NFL Players Association, the players’ union. The NFLPA, which noted that it was not consulted as the league formulated the policy, said that it planned to study the policy and challenge any part found to violate its collective bargaining agreement.

Eugene Volokh, a professor at the University of California, Los Angeles, School of Law who until the end of 2017 anchored an opinion blog for The Washington Post, said that many states have laws that protect the political speech of the employees of private companies that could potentially apply, but said that the legal grounding was untested.

“A considerable amount of states including those that have NFL teams and stadiums do in fact have laws that bar private employers from retaliating against employees because of their political activity,” Volokh said.

The NFL, in seeking the middle of the road, has set itself up to be flattened

The locker room exception included in the league’s new rules — allowing players to opt out of standing for the anthem as long as they are off the field — helps make it a “pretty solid case for the NFL.”

Some of these state statutes would prohibit the employer from compelling political action that the player does not want to engage, among other things. “This avoids that,” Volokh said. “You can imagine other situations where they do require everyone to be on the field to stand and perhaps a court might conclude that violates one of those statutes. But that would vary state by state.”

Volokh said he did not know if any of these laws have been found to apply to speech made at work by private employees and not on their own time.

Are there any constitutional protections against employers’ ability to coerce political speech from their employees, like pledging allegiance to the flag or saluting the president? 

Not really.

“Scary as it sounds, nothing in the First Amendment prevents an employer from hiring only Republicans, or from making his employees salute Trump,” NYU law professor and civil liberties expert Burt Neuborne told The Post last year. “The reason they don’t is not because they would be violating the First Amendment, but because First Amendment values are so embedded in our culture that consumers and customers would reject such behavior as un-American.”

Fred Smith Jr., a law professor and constitutional expert at Emory University, described the heated anthem debate as a clash of values, between equality and what others equate as patriotism.

“This is clearly a very fraught issue in the American political imagination,” he said.  “Generally speaking, I don’t think people want to see large powerful entities, whether it be Facebook or anyone else, telling us what to think and what to say and how to say it. But the constitution is a protection against government power. And for private entities, like the country itself, it’s a work in progress.”

As part of a barrage of criticism directed at the NFL last year, Trump questioned why the league received some tax breaks given the anthem protests, punctuating the tweet with the exclamation “Change tax law!” Did that change anything legally for the players? 

The president is of course entitled to express his views — and he has, many times on the issue of NFL protests — but if his sharp criticism crossed over into threats or bullying of the league and its players about potential government action, that could be a different story, experts say.

“Although the issue isn’t clear cut, I would bet that the Court would view the expression of the President’s views as protected First Amendment speech, as long as he doesn’t back it up with the threat of an exercise of government power,” Neuborne wrote.

Neuborne joined other experts, like Marc Edelman, professor of sports law at Baruch College in New York, in saying at the time that the president’s talking about tax retaliation against the league walked up to — and possibly over — the legal line.

The ACLU, too, said it believed Trump’s tax statements were unconstitutional, which it called an effort “to bully the NFL into complying with his view of what is politically correct.”

“The courts have recognized that when government officials threaten punishment or consequences because of protected speech, that in and of itself can chill the speech, in violation of the First Amendment,” David Cole, the ACLU’s national legal director, told The Post at the time.

Did Trump’s tweet make it safer for NFL players to kneel for the anthem?

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