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Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.
Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”
The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.
The NFL, like a majority of private employers, may enforce prohibitions against protesting, speech, use of social media, and other conduct, so long as it does not violate employment discrimination statutes. Generally, it is unlawful for a private employer to discriminate against an employee on the basis of their race, religion, gender, national origin or sexual orientation. Since kneeling during the national anthem is neutral as to race, religion, gender, national origin and sexual orientation, there is no protections afforded under state and federal anti-discrimination rights.
Employers are permitted to enact rules curtailing speech, so long as they do not violate state or federal employment discrimination rules. For example, an employer can enact rules prohibiting their employees from posting on social media platforms such as Twitter or Facebook. On the other hand, an employer is not permitted to only discipline Jewish employees for posting their views on Facebook and not discipline members of other religious groups for posting their views.