Members of the Indianapolis Colts take a knee during the national anthem before their home game Sunday. (Darron Cummings/AP)
President Trump has again roiled the public debate over free-speech rights with his comments this weekend about football players who take a knee during the national anthem — but lawyers said calling for those players to be fired probably didn’t cross any legal lines.
“Even the president has a First Amendment right to be obnoxious,” said Justin Dillon, a former federal prosecutor now in private practice. “What would be a problem is if he went beyond using the bully pulpit and actually ordered the government to take action against any of these teams or their players.”
Dillon said the public debates raging over free speech — many of them sparked by the president’s comments — often confuse someone’s right to free speech with whether their speech is right.
“I’m not saying we shouldn’t condemn remarks like this, but we should defend his right to say them,” the lawyer said. “That’s an important distinction that’s being lost in our increasingly speech-suspicious society.”
The First Amendment bars the government — not private companies — from restricting free speech.
Erwin Chemerinsky, dean of the University of California at Berkeley’s law school, said the president can say what he wants about football players. “If the NFL were to fire them, there is not a First Amendment issue. The NFL and its teams are private entities, so the First Amendment does not apply. But there is a free-speech issue and likely a labor issue under the union contract.’’
Floyd Abrams, a noted First Amendment lawyer, said that what was most notable about Trump's comments was his obvious disdain for free-speech rights.
“It certainly reflects a deeply contemptuous view by the president of the exercise of First Amendment rights with which he disagrees,’’ Abrams said. “I also think that if one of the teams were to go ahead and fire players because of the president’s statement, that could give rise to litigation in which the president himself or the United States government could become a defendant.’’
Abrams noted that there is broad immunity for a president acting in his role as president, but he said that if such litigation arose, he could see a lawyer arguing “that who is employed as a football player is outside the realm of normal presidential activity.’’
The larger issue, Abrams said, “is everyone involved in this has First Amendment rights, including the president. That said, the notion of cursing [players] and demanding their being fired does reflect enormous contempt for the exercise of First Amendment rights.’’
There is a law on the books, 18 USC 227, that makes it a crime for a federal government official "solely on the basis of partisan political affiliation'' to withhold or threaten to withhold an official act, or influence or threaten to influence an official act, with the intent of influencing a private company's employment decisions.
Trump’s comments probably don’t meet that standard in two respects. It would be tricky to prove that his demands that athletes respect the flag are equivalent to targeting them solely on the basis of their partisan political affiliation, and there is no indication he or anyone working for him has made or threatened an official act to make NFL teams comply with his demand.
Trump has complained before about athletes who have taken a knee during the national anthem in protest of police treatment of minorities. The best-known athlete to have done so was quarterback Colin Kaepernick, who has been unable to find a job in the NFL this season.
During the 2016 election, Kaepernick called Trump "openly racist,'' and Trump has suggested Kaepernick should find another country to live in. But the president's remarks Friday at a rally in Alabama were his most heated on the subject.
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say: ‘Get that son of a b---- off the field right now. Out. He’s fired. He’s fired!’ You know, some owner is going to do that,” Trump said. “He’s going to say, ‘That guy that disrespects our flag, he’s fired.’ And that owner . . . they’ll be the most popular person in this country.”
Trump also urged people to quit on the NFL if they see such conduct. “If you see it, even if it’s one player, leave the stadium. I guarantee things will stop. Things will stop. Just pick up and leave. Pick up and leave.”
On Sunday morning, Trump returned to the subject in a tweet: "If NFL fans refuse to go to games until players stop disrespecting our Flag & Country, you will see change take place fast," he wrote. "Fire or suspend!" In another tweet, he added that "many stay away because they love our country. League should back U.S."
The uproar is a marked escalation from a similar spat earlier this month, when White House press secretary Sarah Huckabee Sanders said at a news briefing that an ESPN anchor, Jemele Hill, should be firedfor tweeting that the president is a white supremacist.
Sanders called Hill’s tweets “one of the more outrageous comments that anyone could make and certainly something that I think is a fireable offense by ESPN.”
ESPN criticized Hill, who is African American, in a public statement distancing the network from her remarks, but it has not suspended her from her co-hosting gig on “SportsCenter.” The network, which has been accused by far-right conservatives of being too openly liberal with its politics, called Hill’s tweet inappropriate and noted that her comments do not “represent the position of ESPN.”