The ongoing feud between the White House and the National Football League (NFL) escalated last weekend when Vice President Mike Pence walked out of an Indianapolis Colts vs. San Francisco 49ers game in a stance against ongoing protests by players during the national anthem.
Donald Trump’s war with the NFL began when he first evoked the issue at a rally in Huntsville, Alabama. While some critics, mainly on the left and some on the right have critiqued the position of the President in attacking NFL players and carrying out an ongoing feud, the bigger theme at stake here is the issue of freedom of speech.
The question here is what standard of freedom of speech, both legally and conceptually are NFL players entitled to, and is the President disrespecting and even perhaps violating one of the foremost institutions he is tasked with protecting and upholding in carrying out this feud? The answer can be determined based on how you see this issue and which narrative and frame you choose to believe. The framing of anthem protests as disrespectful to the flag and the military, even if controversial as a point of consistent condemnation from a sitting U.S. President, nonetheless hits home with the Republican and conservative base across the spectrum. Even conservative pundits who disagree with the style in which the President is carrying out this feud, likely agree with him on the substance of his argument. Donald Trump views this latest culture war as a winning issue, and with his base, he is probably right. But then again, what about free speech?
Free speech takes two forms. First, there is the legal text enshrined in the first amendment of the Bill of Rights protecting citizens’ freedom of speech, religion, expression, or right to assemble and petition from being infringed upon by government officials. This protection however only exists in the context of when these freedoms are being curtailed by public officials or in a public context.
Then there is the bigger concept or institution of free speech that we tend to hold up as the foundation of what makes our democracy strong and vibrant, separate from the first amendment. If you go to a private university, for example, you technically don’t have first amendment protections from your school’s administration, but there is the larger idea that this concept of free speech should be respected and upheld as it pertains to the American constitutional tradition.
The NFL also happens to be a private organization, and each player is contractually bound to follow guidelines set by the team and the league. If owners and league officials deem anthem protests damaging to the league’s brand or more importantly, in violation of league rules or the current Collective Bargaining Agreement (CBA), the right to terminate players who do not adhere to team or league policies pertaining to conduct are subject to being cut or benched at free discretion. Players, of course, could challenge the discretion of owners through the players association under the CBA, but legal experts are split on how their case would fare. The NFL anthem protests have nothing to do with the first amendment, but they are absolutely a part of the larger conversation we are having and need to continue addressing regarding free speech as a widely accepted and defended institution.
The political and cultural left carries a burden of hypocrisy on issues pertaining to the first amendment and the institution of freedom of speech. On one hand, when it pertains to anthem protests, they are warriors for the rights of the players and their right to express themselves. When Ben Shapiro or another conservative speaker is invited to speak on a college campus or other venue, their reaction often ranges from actively working to disallow their appearance, either using violence or force to accomplish this goal, to remaining silent on the freedom of speech rights of those individuals. This is the same political and cultural left that has used their institutions to try to force advertisers to flee conservative radio and TV shows, such as Sean Hannity, to get them off the air, to working diligently to disallow certain books and texts that are deemed offensive from schools and academic institutions.
Make no mistake about it, the political and cultural left, as a rule fails the free speech test, and their vigorous defense of NFL players has nothing to do with wanting to protect freedom of speech, but has everything to with wanting to build a winning narrative on social justice issues and waging their own culture war in response to Trump. The same left of center groups that will tell you that private institutions have the right, and should exercise their right, to ban speech that hurts their feelings will change course completely on the NFL. The use of Colin Kaepernick’s employment status to build a case that owners are anti-free speech bigots ignores not only the inconsistent play of Kaepernick and the fact that he was benched for a low-tier backup but the fact that he opted-out of a contract he re-negotiated to be able to have that contract option.
While many players and supporters of their cause felt they could win this culture war, NFL commissioner Roger Goodell, who expressed support for the players early on in this feud, recently backtracked in sending a letter to every NFL team asking players stand for the anthem. This comes after owners of individual teams, such as Jerry Jones of the Cowboys and Stephen Ross of the Dolphins made similar requests, and even mandates, for their players. The reason why a lot of the original support that existed for the players after the President’s comments has dissipated is that the groups that back them lack sincerity and consistency on the core issue of freedom of speech.
Groups with poor records on defending freedom of speech can’t suddenly turn around and decide it’s a core issue when someone or something they care about comes under threat. What this highlights is why protecting freedom of speech as an institution on a consistent basis is so important. If the standard is only applied when it is convenient, it will become a useless standard. So yes, NFL players in this country have every right to express themselves freely without fear of repercussions from the government, and they should be entitled to a general ability to express themselves freely within the confines of the NFL’s private structure. With all freedom of expression comes the right of others to reject that expression and speech, and respond with a counter initiative, whether that be a boycott of NFL games, demonstrations like the one Vice President Pence did last weekend, or the withdrawal of financial support from the league to signal displeasure.
As ambassadors of the league and the individual brands of the teams, players have an obligation first and foremost as employees to their employer. If their employer is losing money because of their protest, then the conversation shifts from free speech rights to the right of private companies to reprimand employees who damage the company’s bottom line. What the left must understand moving forward is that for every Colin Kaepernick who they believe is entitled to be heard, there is also a Ben Shapiro. The greatest threat to freedom of speech in this country is not necessarily those who wish to threaten the institution outright, but those who blur the lines of its application to the point where we misunderstand what it means.