The recent protests of the national anthem by San Francisco 49ers quarterback Colin Kaepernick have sparked a nationwide discussion of free speech rights and the First Amendment.
People and organizations with widely differing opinions have chimed in on the debate.
My immediate reaction was “who cares?” Not as in who cares about the underlying civil rights issues in our country, but rather who cares about the messenger – a second-string quarterback on a team that failed to even make the playoffs. Clearly, I was mistaken.
There was an initial backlash against Kaepernick (and a few others), with many critics vehemently disagreeing with his “disrespect” of the flag and anthem. Many on social media hurled personal insults, including the suggestion that the “spoiled” athletes leave the country. This vocal, negative reaction caused many other athletes from various sports at all levels to join in with similar protests. One of the more poignant, symbolic demonstrations came from Oakland middle and high school band students, playing the national anthem at an Oakland A’s game – while kneeling on one knee.
In reality, the protection of the First Amendment hasn’t been needed or invoked to protect Kaepernick or other NFL athletes. No government official has ordered them to stand, salute, sing or hold their hands over their chests. Ironically, the United States Code does prescribe how citizens are supposed to address the flag during a ceremony, saying that “No disrespect should be shown to the flag of the United States of America.”
36 U.S.C. Section 301 specifically addresses the national anthem: “During a rendition of the national anthem ... when the flag is displayed ... all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart.”
This “law” contains “suggestive” language only, is not mandatory and contains no penalty or enforcement mechanism. If someone attempted to enforce the code, such would be unenforceable – the right not to participate would be clearly protected by the First Amendment.
The national discussion has also revealed that the First Amendment’s protection of free speech is often misunderstood. The terms are casually thrown around, with the assumption that the Constitution insulates a speaker from retribution. For those who believe the First Amendment protects Kaepernick’s actions from his employer or the NFL, or would protect them for exercising free speech in their own workplace, they are (mostly) wrong.
The First Amendment says that “Congress shall make no law ... abridging the freedom of speech.” And although the First Amendment says “Congress,” the Supreme Court has applied this protection for speakers against all government agencies and officials: federal, state and local, and legislative, executive or judicial.
But this limits only the government’s ability to suppress speech, it generally does not protect speakers against private individuals, private colleges, private landowners or, most importantly, private employers. Justice Oliver Wendell Holmes Jr. famously said: “An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” So employees beware.
A few states, including Colorado, have enacted statutes limiting speech-related termination, prohibiting employers from punishing employees for legal off-duty activities that do not conflict with the employer’s business-related interests.
While this provides Colorado workers some measure of protection not found in most states, one shouldn’t overlook the importance of the last clause.
First, to be protected by the statute, you have to be off duty. Whatever your political viewpoint, if you bring controversy into and disrupt the workplace, you have little and likely no protection from termination. Outside the workplace is not necessarily a safe haven because of social media. The permanent nature of certain posts, videos, tweets, etc., can be problematic.
While you have the right to “post” almost anything you want “online,” if it conflicts with your employer’s business interests, including offending customers, you are potentially jeopardizing your employment.
And for those just entering the workforce who think the First Amendment protects them in the initial hiring process, forget about it.
The 49ers and the NFL could theoretically suspend, fine or force Kaepernick to stand for the national anthem. They choose not to for their own business reasons, not because of the First Amendment.
As far as your own First Amendment rights at work, remember that you’re not Colin Kaepernick.
Duke Eggleston is a partner in the Durango law firm of Eggleston Kosnik. Reach him at deggleston@e-klaw.com.
