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A free speech lawyer’s view of the Trump / NFL controversy (and the potential hidden issue)

Sep 25th, 2017 | By | Category: First Amendment

First Amendment Law – How it (might) Apply to the NFL player “take a knee” protests.  Another Attorney Steve® legal insight.  Are taxpayer funded stadiums a “public forum” where free speech rights exist?

Trump twitter free speech

Introduction

I think most of us have heard by now about the NFL football players #TakeAKnee protest and POTUS Donald Trump’s reaction to the protest.  This blog takes a legal look at the issues and attempts to analyze the issues as a matter of law (not politics).  In this blog, I make the argument that it may be possible that the NFL owners have their hands tied and are not able to “fire” the players as Trump is calling for.  It is also possible that Trump may be violating his oath of office in suggesting that players should be fired for their protesting.  The first amendment has been absent from some of the discussions I have seen online and on TV, so I thought writing a blog on this topic might be helpful.

In my opinion, the truth usually seems to lie somewhere between the extremes and so adding a new angle into the debate may shed some light on the legal framework that may be at play, although not discussed.

What is the NFL player protest about?

The protest appears to be about one or more of the following as far as I can tell as each of these has come up in my research:

  1. Racist white cops killing innocent black persons (Black Lives Matter movement)
  2. Racial injustice on a general level
  3. Anti-white supremacy (based on the car attack incident in Charlottesville)
  4. Protest against Donald Trump for calling players “son of a bitches” and to “fire” those who protest by taking a knee
  5. Colin Kaepernick being “whiteballed” by not being offer a job as quaterback
  6. Some have also said this is part of the #nevertrump movement and part of the general Trump “resistance” effort
  7. Oppression against minorities

These topics, to me, appear to be legitimate first amendment issues and no exceptions to free speech as outlined in the video below, appear to apply.  Thus, if the player contract and league rules allow it, (and given that I believe many sports stadiums are “state actors” that are subject to the constitution) the protests would be deemed protected free speech.  Meaning, the NFL owners might be legally powerless to prevent it much less fire anyone.  That being said, many people question the Time, Place and Manner of the protests (during the star spangled banner as a flag is usually being draped across the filed) are also raising questions (ex. why not take a knee at Police Departments if you are upset about racist cop killing, for example is something I have heard).

NOTE:  As of now, the NFL owners have not given any indication that the players are doing something against their written player contracts (discussed below, which contracts would also need to be followed at risk of breaching their contract) so we will assume this is understood to be acceptable free speech in the eyes of the NFL, (who actually may be doing nothing because they ACKNOWLEDGE they are “state actors” and thus BOUND to allow the protest to continue).  If true, this is an interesting point I have not seen anyone raise or discuss. Perhaps a hidden issue that should be part of the debate.

What does the first amendment to the United States constitution say?

Here is what the first amendment says:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (emphasis added).

What this means is the government should not pass laws (other than that types mentioned in my video below) that prevent people from being able to exercise their free speech rights to say what’s on their mind, and even to NOT say something (ex. NOT to stand when the pledge of allegiance is playing is a protected right, even if it offends “patriots.”  So whenever you are dealing with government (whether state, local, or federal) you have a right to free speech.  Let’s start our blog with that.  If you want, click on the picture below to see areas where the government MAY be able to regulate in this area.

What is a “Public forun” for free speech purposes?

According to First Amendment Schools, there are three types of public forums:

I. A “traditional”, or “open, public forum” is a place with a long tradition of freedom of expression, such as a public park or a street corner. The government can normally impose only content-neutral time, place, and manner restrictions on speech in a public forum. Restrictions on speech in a public forum that are based on content will be struck down, unless the government can show the restriction is necessary to further a compelling governmental interest.

II. A “limited public forum” or “designated public forum” is a place with a more limited history of expressive activity, usually only for certain groups or topics. Examples of a limited public forum would include a university meeting hall or a city-owned theater. The government can limit access to certain types of speakers in a limited public forum, or limit the use of such facilities for certain subjects. Despite these more proscriptive guidelines, however, a governmental institution may still not restrict expression at a limited forum unless that restriction serves a “compelling interest.”

III. A “closed public forum” is a place that, traditionally, has not been open to public expression, such as a jail or a military base. Governmental restrictions on access to a nonpublic forum will be upheld as long as they are reasonable and not based on a desire to suppress a particular viewpoint. This standard is far more deferential to government officials.

Where does a taxpayer funded sports stadium fall into this?  To me, #2 fits best.  To that extent, speech can be restricted (and I suppose the suggestion that free speech protected activities should not take place there as Trump has suggested) in these areas with a “compelling interest.”  Trumps compelling interest is, to me, trying to unite all of America to have respect for the flag and the people that fought for the flag.  As he has said, he is trying to Make America Great again.  Likely this, coupled with his presidential powers, would be enough to pass “constitutional muster” as they say.

Are there exceptions to free speech (when free speech rights may not apply)?

free speech lawyer

VIDEO:  Click on the picture above to watch Attorney Steve discuss this important legal topic and whether or not any exceptions to the free speech laws exist.  Most people wrongly think the right to open one’s mouth is “absolute.  Make sure to SUBSCRIBE to our legal channel on youtube.  As we like to say “be smarter than your friends.”

What types of entities must comply with the 1st Amendment?

Next, the question comes up about private businesses.  Do they have to honor and allow the first amendment free speech in their private establishments?  The answer is most likely they DON’T.  You may have seen signs in your local Diner or Coffee shop which say “we reserve the right to refuse service to anyone.”  This means, if you go into a private establishment and start shouting “No Trump, no KKK, NO fascist USA” the owner may ask you to leave.  Absent other facts, this would unlikely be a first amendment violation because you are in a private (non governmental /  non taxpayer funded business).  This is not a point I am sure everyone engaged in the NFL protest understands.

However, the question becomes is whether or not the NFL is a “non-taxpayer” funded place.  Courts have held that the Constitution applies to “state actors” that is entities that are government like, or tax payer funded to a large degree.  Is a NFL stadium a public place or a private place?  Many think these stadiums are PRIVATELY OWNED, but many are NOT.  They are tax payer funded.  If true, this could make the NFL a “state actor” for first amendment purposes, and they may have no choice but to allow free speech rights.  For this same reason, Trump should not be trying to quash free speech in this public type of forum.

Does the NFL take taxpayer funds?

Here are some links showing (to the dismay of many) that the NFL is taxpayer funded (and also tax exempt, like a church);

  1.  CNN – NFL GETS MILLIONS FROM TAXPAYERS
  2. FOX – TAXPAYERS HAVE SPENT A STAGGERING AMOUNT ON NFL STADIUMS
  3.  NBC – NFL RECEIVES 6.7 BILLION FROM TAXPAYERS

I think you get the idea.  The public funds these places.  As such, shouldn’t these places be open to the public, for example, for free speech purposes? One Harvard Review article noted:

“One of the hallmarks of free speech jurisprudence is that public expression is most carefully guarded within locations traditionally understood as public, even if they are not publicly owned. As the Supreme Court observed in Hague v. Committee for Industrial Organization,

1 “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

2 Applying constitutional protections to privately owned locations seems odd in light of the state action doctrine, which requires a threshold showing of state involvement for most constitutional claims.

3 Although the Court treats some private entities as state actors, doing so in the free speech context creates tension between the autonomy and property rights of owners and the expressive rights of others.

So the difference between private property and public property must be kept in mind.  Are the NFL stadiums private or public?

What is a “state actor”

This is the legal term you need to know.  If an entity is deemed a “state actor” then the constitution applies (whether you are dealing with a local government, city, counsel, state, or a federal).  So what is a state actor who would be subject to first amendment?  Courts have grappled with this issue over the years.  According to wikipedia:

There are a number of situations where the United States Supreme Court has recognized the conduct of individuals or private organizations to be “state action,” and therefore subject to provisions of the Constitution such as Equal Protection, Due Process, or the First Amendment. The Supreme Court has held the following:

1. Merely opening up a business to the public is not state action, but the performance of a “public function” (a function that has been traditionally and exclusively performed by the state) is state action (Marsh v. Alabama, 326 U.S. 501 (1946));

2. If an individual or organization merely enters into a contract or asserts a contractual right outside of court it is not state action, but if an individual or organization sues to judicially enforce a contractual right it is state action (Shelley v. Kraemer, 334 U.S. 1 (1948));

3. If the government merely acquiesces in the performance of an act by a private individual or organization it is not state action, but if the government coerces, influences, or encourages the performance of the act, it is state action (Rendell-Baker v. Kohn, 457 U.S. 830 (1982));

4. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961));

5. If government agencies are simply members of a private organization, the actions of the organization are not state action, but if the government is “pervasively entwined” with the leadership of the private organization, the acts of the organization are state action (Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002)).

Using just this criteria, the government raises money through taxes and gives it to help build the stadiums where people gather to watch sports.  This alone could create an instance where a NFL stadium (although the team, for example the Dallas Cowboys, may be privately owned) a stadium financed by taxpayers may not be the same.  If the NFL stadium is deemed a “state actor” though significant taxpayer financing, some willful, some coerced, then perhaps the stadiums should be “state actors” and subject to constitutional restraints on free speech.  If so, perhaps the NFL players have a legal right to protest, and the POTUS might be compelled (via his oath of office) to refrain from trying to restrain peaceful protest?

The President’s Oath of Office

When the President is sworn in, he must take the oath of office which states:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. (emphasis added)”

This is a big 35 words.  By telling NFL people on his twitter account:

first amendment protect tweet

In other words, the NFL players should not be protesting, does this tweet violate the first amendment?  Violate the oath of office?  Just something to consider.  I am not saying the answer is YES, I am saying it is something to give some thought to.

Does the standard NFL players contract restrain free speech in any manner?

Now, even if my analysis above is correct (that a NFL football stadium is a public forum funded by taxpayers) and that their protests are allowed as a matter of constitutional right, then does that mean it can go on indefinitely?  Should it go on indefinitely?  What if, for example, other NFL players decided they would do jumping jacks during the national anthem to protest illegal immigration?  So you could literally have this circus going on the field, with players hating eachother, and fans hating the players, but with NFL owners loving the players.  This would seem to be a weird outcome, and one would think there would be either private policy in the NFL to prohibit this conduct, or possibly the players written contracts might prevent this type of speech.  You would have to look to the terms of NFL policy (which I do not have before me at the moment) but I do have what may represent a “standard player contract” from one of the main sports law websites (Marquette Sports Law Journal).  In this journal you will see one clause that might be a part of some of the players agreements (others might be operating under a custom contract negotiated by their sports lawyer).

In this contract I see one clause:

15. INTEGRITY OF GAME. Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity; uses or provides other players with stimulants or other drugs for the purpose of attempting to enhance on-field performance; or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract.

Obviously, even contracts are open to interpretation, and it appears the NFL is taking the position that a peaceful protest, even during the star spangled banner (which offends a good amount of people) is not detrimental to the game.  The recent statements by the commissioner Goodell appears to be there out where he said:

“The NFL and our players are at our best when we help create a sense of unity in our country and our culture,” Goodell said in a statement. “There is no better example than the amazing response from our clubs and players to the terrible natural disasters we’ve experienced over the last month. Divisive comments like these demonstrate an unfortunate lack of respect for the NFL, our great game and all of our players, and a failure to understand the overwhelming force for good our clubs and players represent in our communities.”

So as of now, it appears that the commissioner is on the side of the players, possibly because he truly believes there is no detriment to the league (although ratings are noticeably down), and possibly because he knows the NFL stadiums are “state actors” for constitutional law purposes, and that they have no power to fire anyone much less quash their first amendment free speech rights.  Again, this is just food for thought to add a legal angle to the debate.

Sports Illustrated Article suggests another legal theory

I found this on Sports Illustrated page:

Some have suggested 18 U.S. Code § 227 as a law that could be used against Trump in response to his various statements about private businesses, including the NFL. This law prohibits the President, as well as members of Congress and other federal officials, from “wrongfully influencing a private entity’s employment decisions.” Persons convicted under this statute face up to 15 years in prison and disqualification from public office.

This law would appear to be another exception to “free speech.”

Does the NFL pick and choose acceptable “free speech” topics?

Some argue they do.  For example, the NFL elite did not allow the Dallas Cowboys to wear a sticker on their helmet in honor of police officers who were killed (a cause strongly held by some of the players) as noted by a DailyMail blog which headlined an article:

“Dallas Cowboys are BANNED from wearing a sticker saying ‘Arm in Arm’ on their helmets in a gesture of support for slain police officers”

Apparently the current “arm in arm” kneeling protest is worthy, while the Arm-in-Arm for the police officers was not worthy.  If the stadium is in fact a public forum funded by the taxpayer, perhaps the actions of the NFL could be deemed unconstitutional as violative of the first amendment.  Something to think about. 

Conclusion

Our country has been through a lot, but also handled a lot.  Healthy peaceful debate is good as long as we can keep our emotions in check.  Everyone has something that is important to them and which they hold dear.  On these topics, let the debates roll consistent with first amendment protections, and consistent with any applicable contracts and policy.  Try to keep it friendly, and backing what you have with fact is important as well.  Be specific and reasonable as to what you want.

At the end of the day, here’s to hoping we can all come together despite our differences.  A divided United States affects everyone.

Has Trump done anything illegal?  Not likely.  He was trying to demand respect for the flag and the people who fought for this Country.  He has his own free speech rights.  However, the point of this blog is that we all need to think before we act.  We have free speech, but sometimes speech is not without consequences.  Please feel free to leave your comments below.

Contact a free speech first amendment law firm

If you find yourself in a situation where you need a free speech lawyer call us at (877) 276-5084.  We can help with cease and desist letters, legal responses, subpoenas, and arbitration, mediation and litigation.  If your first amendment free speech rights have been violated taking legal action may be one of your options.

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