FactChecker Analysis

TheNFLandtheFirst
Amendment:AGuidetothe
Debate
ByNicoleLewis October5

WouldntyoulovetoseeoneoftheseNFLowners,whensomebodydisrespectsourflag,tosay,Getthatsonofa(expletive)
offthefieldrightnow.Out.Hesfired.Hesfired!Butyouknowwhatshurtingthegamemorethanthat?Whenpeoplelike
yourselvesturnontelevisionandyouseethosepeopletakingthekneewhentheyareplayingourgreatnationalanthem.
PresidentTrump,remarksduringarallyinAlabama,Sept.22,2017

President Trumps remarks on NFL players taking a knee during the national anthemstoked a debate over football players
right to protest during a game. Many Republican lawmakers have responded to Trumps comments, framing the issue as a
matter of free speech and respect of military veterans. On Sept. 23, Trump doubled down on his initial comments in a series of
tweets, reiterating his initial assertion that players who protest during the national anthem should be fired.

The ensuing controversy, including remarks by Republican leaders, has raised questions about the players right to protest
under the First Amendment. Here is a guide to understanding where the First Amendment applies.

IfaplayerwantstheprivilegeofmakingmillionsofdollarsintheNFL,orotherleagues,
heorsheshouldnotbeallowedtodisrespect.ourGreatAmericanFlag(orCountry)and
shouldstandfortheNationalAnthem.Ifnot,YOUREFIRED.Findsomethingelsetodo!
Trump,inapairoftweets,Sept.23

By calling for players to be fired Trump is expressing his point of view. But his comments raise the question: Can the NFL fire
players for protesting?

Well, yes, but it is unlikely.

Following Trumps tweets, a viral Facebook post incorrectly stated that players were required to stand in accordance with
sections A62 and 63 of the NFL rule-book. But the rule-book, which covers codes of conduct by players and coaches during
games, does not actually address the national anthem. However, the NFL game operations manual, a 260-page document that
addresses game rules at a higher organizational level, does. Below is a snippet of the policy:

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. The home team should
ensure that the American flag is in good condition. It should be pointed out to players and coaches that we
continue to be judged by the public in this area of respect for the flag and our country. 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.

Yet the policy allows teams to use their discretion, and currently, according to NFL spokesman Brian McCarthy, players are
encouraged but not required to stand for the national anthem.

Before 2009, according to McCarthy, players in prime time games were not required to be on the field, instead they came out
after the anthem on cue from the networks. Players in daytime games, however, were on the field during the anthem. In 2009,
the NFL decided that all players should be on the field to ensure consistency across all games.

Even though the manual spells out a players conduct during the anthem, a players rights as an employee are largely
determined by contract, according to Michael McCann, Sports Illustrateds legal analyst and associate dean for academic
affairs at the University of New Hampshire Law School. McCann spelled out the routes the league could take to fire a player
for protesting in a Sept. 23post on SI.com.

McCann found that a standard player contract offers considerable discretion to teams in the decision to terminate a players
employment. McCann points to two sections of contract, including a clause that states players must conduct themselves on
and off the field in a manner that maintains public respect for the game. Additionally, players must also ensure their
personal conduct does not adversely affect or reflect on the Club.

McCann notes that fired players have the right to petition and receive an arbitration hearing, as spelled out by the collective
bargaining agreement between the NFL and the NFL Players Association. During the hearing, a neutral party would weigh
evidence and determinewhetherthere was sufficient grounds for termination.

ThisisntaboutDemocrats,itsnotaboutRepublicans,itsnotaboutrace,itsnotabout
freespeech.Theycandofreespeechontheirowntime.
TreasurySecretaryStevenMnuchin,remarksduringanappearanceonABCsThis
Week,Sept.23,2017

Thatstheirrighttodowhattheywantascitizens.
Sen.JohnMcCain(RAriz),remarkstoTMZSports,Sept.26,2017
Mnuchin argued that players protesting was not a matter of free speech while McCain asserts that protesting is a players right
as a citizen.

Who is correct?

Technically, when the players take the field they are doing so as private citizens employed by a private company. The right to
protest is covered under the First Amendment of the U.S. Constitution. But the right has limits.

The First Amendment prohibits the government from restricting free speech. As a private company, the NFL is not subject to
the same standard. If the NFL required players to sign contracts that restricted their free speech, and the players violated their
contract, they could be fired with little legal recourse.

However, Peter Shane, law professor at Ohio State University, points out that government pressure to fire the players would
be against the law.

It would be against the law for Trump to threaten government action against a private entity in order to provoke the firing of
employees based on their party affiliation, but that statute appears inapplicable here, Shane told VOX on Sept. 25.

Spokespeople for Mnuchin and McCain declined to comment.

NowtheFirstAmendmentstheFirstAmendment.Itgoesstarttofinish.Wecantsayto
onefootballcoach,yourefiredifyoukneelinsilentprayerattheendofthegame,buttoa
player,ifyoukneelinprotestatagame,yourecelebrated.
U.S.Sen.JamesLankfordofOklahoma,Sept.25,2017

Lankford, in referring to a firing over prayer, is talking about Joseph Kennedy, an assistant football coach at Bremerton High
School in Bremerton, Wash.Kennedy had a practice of leading teams in prayer during school football games. When it came
time for his annual review, Kennedys contract was not renewed on the grounds he failed to follow district policy and failed
to supervise student-athletes after games due to his interactions with (the) media and (the) community, according court
documents.

Kennedy filed an injunction on the grounds the school was violating his First Amendment rights. But the courts denied his
injunctionon the grounds that because Kennedy was employed by a public institution, his speech was not protected.

When Kennedy kneeled, and prayed on the 50-yard line immediately after games while in view of students and parents, he
spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected, wrote the 9th
Circuit Court of Appealsin 2017, denying Kennedys claim.

The courts affirmed that Kennedy was violating the Establishment Clause of the First Amendment, which restricts government
from prioritizing one religion over another.
Unlike Kennedy, the NFL players are employed by a private entity, so the Establishment Clause does apply to the league. But,
as we pointed out earlier, the First Amendment protections dont apply to the players, and they could still be fired for
protesting.

PolitiFact Oklahomafact-checked Lankford claims, and found them to be half-true, saying it was a misleading comparison.

Lankfords spokesman, D.J. Jordan, saidthe senator has a different interpretation of the Establishment Clause and believes
that Kennedy was well within his constitutional right to exercise his freedom of religion.

Nowhere does the First Amendment or Constitution prohibit the government or government employees from referencing
religion altogether, nor does it require that government officials proactively scrub all references of religion from the public
square, he said. Rather, the Establishment Clause ensures both that the government does not affirmatively impose or elevate
one religion over another, and that the government does not take away an individuals ability to exercise religion.

By firing Kennedy, he argues, the school infringed on his most basic rights of the free exercise of religion, free speech, and
the freedom of association.

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