Is Taking a Knee Protected Speech?
"The constitutionally guaranteed 'freedom to be intellectually … diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous."
— Supreme Court of the United States in Street v. New York (1969)
Sometimes the public expression of unwanted ideas reaches directly into our living rooms. When President Donald Trump attacked a half-dozen or so professional football players who, instead of standing during the traditional playing of the national anthem prior to football games, "took a knee" by kneeling on one or both of their knees during the anthem, hundreds more players on national television took a knee in defiance of the president.
Here is the back story.
Last year, a quarterback for the San Francisco 49ers, Colin Kaepernick, began quietly taking a knee at NFL games to protest what he said was the excessive use of force by police. He was the subject of mild but largely below-the-radar criticism by those who thought sincerely that taking a knee publicly during the playing of the national anthem was a sign of disrespect for the flag and the anthem and thus for this country.
When a few of his buddies and former colleagues — he is no longer a member of an NFL team — followed suit for a variety of reasons, all of which centered around the right to protest the policies of the government, Trump saw a political opening.
At a rally in Alabama last month, Trump aggressively attacked the practice of taking a knee. He argued that it was so disrespectful to the American flag and the national anthem that those who had taken a knee should be fired from their jobs.
This pronouncement focused a spotlight on the six or so scattered players who had followed Kaepernick's lead, and soon hundreds were doing so. The president took their behavior as an affront to him and to the nation, and he persisted in his attacks on the players. Soon, some team owners joined their players in various means of expressing solidarity with those who had taken a knee.
When the players union backed up these silent expressions of political opinions, it argued that all of its members have a constitutional right to express themselves in uniform in their workplace. Do they? The short answer is that it depends on where the players are when they take a knee.
Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one's head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.
Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management's political or patriotic views constitutes interfering with speech. May employers do that?
In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so.
So in states such as Texas, an employee who refuses to comply with an instruction from management to conform to certain behavior in public — e.g., standing during the playing of the national anthem — can be disciplined, as Texas lacks the added protections for individual workplace expressions that a few states provide.
However, even in the states that lack the employee expression protection, if management's instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.
Thus, in states where the government owns the stadiums or where expressive conduct in the workplace is protected, employees may engage in expressive conduct in defiance of management, as long as their conduct does not interfere with the workplace. Just as the government may interfere with speech for non-content-related reasons — for example, noise at night or safety in a crowd — management may interfere with speech when the speech itself interferes with the business of the workplace.
If team management could show that taking a knee materially interferes with the workplace product — money for the owners resulting from players winning football games — because it chases away ticket buyers or reduces advertising or media revenue or impairs team morale and thus produces poor play, it would have a strong case, even in the states with employee protection laws and even in venues owned by the government.
In the famous flag burning cases a few years ago, the Supreme Court made clear that in America, we have no revered symbols that command orthodox respect. The flag itself represents the right to treat it as one wishes. We are free to respect the flag and to shun those who do not, but we may not harm a hair on their heads.
I am with the French philosopher Voltaire, who, regarding folks who had literally lost their heads, is reputed to have said, "I disagree with what you say, but I will defend to the death your right to say it."