Complications of Free Speech: Trump’s Tweets and Taking a Knee

Meira Ruben ’20 – Inside Politics Participant

One September afternoon in a Californian football stadium, over 60,000 people rose for the national anthem as the San Francisco 49ers and the San Diego Chargers prepared to face off for an opening preseason game. The game should have been a normal kickoff to the 2016 season, however one player’s decision sparked a revolution across the country that suddenly thrust the NFL into the limelight and left many DC politicians reeling. 49ers quarterback Colin Kaepernick knelt to the turf during the pre-game national anthem performance, purposefully defying the flag in an attempt to make a political statement about the practices of police brutality sweeping the nation. Not everyone in the stadium witnessed this open act of political defiance, but once a photographer snapped a picture of Kaepernick kneeling, the media exploded and soon every television channel and radio station buzzed with Kaepernick’s name. Players from other NFL teams began imitating the infamous kneel during the national anthem throughout their seasons, which consequently led to a polarized popular opinion with an excited media industry prompting the debate.

A year after that September game, the kneeling situation culminated with recently-elected President Trump sending out a tweet on September 23 calling for the expulsion of any NFL player who openly disrespected the flag and the anthem:

“If a player wants the privilege of making millions of dollars in the NFL, or other leagues, he or she should not be allowed to disrespect……. our Great American Flag (or Country) and should stand for the National Anthem. If not, YOU’RE FIRED. Find something else to do!”

The president’s tweet angered many viewers; not because of Trump’s opposition to Kaepernick’s message about police brutality, but because the public felt as though Trump had no right as a government executive to criticize free speech within the private affairs of the NFL. Since the NFL is a private organization, the league commissioner, the team owners, and the team coaches hold the power to enforce players to abide by the rules in their contracts. However, complications arise when a) the government pressures a private entity to act in a certain way despite their civil liberty freedoms, and b) when an organization like the NFL receives public funding and can therefore be considered both a private and public institution. In a recent court case, the 2006 ruling in Garcetti v. Ceballos, the  “Supreme Court held that when public employees are not speaking as citizens — but instead in their official public capacities (here, as president) — the First Amendment does not protect them from being disciplined for their speech,” as explained by journalist Kimberly Wehle from The Hill. When Sean Spicer announced in a press conference that Trump’s tweets are “considered official statements by the President of the United States,” we can conclude that Trump’s influential remarks about how the NFL should fire players for kneeling are not protected under first amendment rights. Although no allegations against Trump were pursued for attempting to compel the NFL to take his harsh suggestions, the precedent set by Garcetti v. Ceballos proves that the president’s public statement on Twitter was both wrong and possibly unconstitutional.

Although Trump’s public expression may not be protected under the Bill of Rights, what about the NFL’s right to fire a player? The NFL is a private organization, yet has great influence and value in the public sphere. It is so publically involved that even our tax dollars fund ⅔ of the costs that subsidize the construction of football stadiums nationwide (Siegfried and Zimbalist, 2000). However, the Constitution only has the power to limit the bureaucratic government’s expression of free speech. Despite how active the NFL is in the public sphere, the United States cannot technically obstruct its decisions since it is a private organization. It is up to the NFL’s discretion whether or not they decide to fire players for failing to stand for the national anthem.

The government can rarely revoke an individual citizen’s first amendment rights, yet ambiguous cases often arise when inappropriate speech challenges this notion. We learn from the NFL situation that a private company has complete autonomy over enforcing rules of respecting the national anthem, and that a president or government official’s potential influence in that autonomy can controversially be considered unconstitutional.  Although Trump did not and could not mandate the NFL to fire these players, his suggestive rhetoric greatly impacted public opinion and we cannot help but wonder if those tweets may someday impact the future of NFL contracts.