The NFL player’s controversy over kneeling for the National Anthem sure does get heated. If there is one comment that you see over and over again in any article or post about the NFL kneelers it is “But haven’t you ever heard of the First Amendment?” usually followed by some name calling to anyone who thinks the players should stand.
While I’m sure there are plenty of constitutional lawyers commenting on Facebook posts in their spare time (eye roll), it’s important we remember that not everything we read on the internet is actually fact. So while many people like to play experts online, the truth is, most of these people have no idea what they are talking about.
Finally, an actual expert has weighed in and put to rest any question of the player’s protections afforded by the First Amendment.
When explaining their reasoning for why national anthem protests should be allowed, many players have been quick to point out that they’re merely exercising their constitutional rights under the First Amendment. Well, someone who has forgotten more about the First Amendment than any inside linebacker will ever know, says that the constitution offers the players no such protection.
During a radio interview with John Castimatidis on 970 AM in New York, constitutional law scholar Alan Dershowitz said that the players have no constitutional right to kneel.
Dershowitz explained, “The players are entitled to kneel if the owners allow them to. Now the owners could say ‘no’ because the players don’t have a First Amendment right in relation to the owners. They only have a First Amendment right in relation to the government.”
Dershowitz added that he believes, the First Amendment is “working well” in the context of the NFL, because “both sides are being heard.”
Dershowitz is certainly correct in his appraisal of the constitutional implications of the player protests. He’s more right than not, when saying that “both sides are being heard.” However, while both sides of the protest debate have spoken, clearly, the NFL is only listening to one side.
So it really comes down to the NFL owners. They each have the right to decide whether or not their players can kneel. It makes sense that since the NFL is a business, the decision will ultimately come down to numbers.
We have all seen the examples on social media of fans burning their beloved (and expensive!) NFL clothes and paraphernalia. We also know that TV ratings are down and polls show that most fans are not supportive of the kneelers.
Some owners feel like John Mara of the Giants who said “There’s no question this had an impact on the business, but this is an important social issue. And sometimes you have to put the interests of the business behind the interest of issues that are more important than that.”
As an owner, that’s his prerogative. As a fan, it’s my prerogative not to watch. At some point, the money loss will be substantial enough to those owners who allow the kneeling to continue. They will then have to make a business decision.
From a legal standpoint, however, those who believe owners who force players to stand would be trampling on their player’s First Amendment rights, are simply wrong. The First Amendment does not apply here, so people need to stop arguing it does.