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A Constitutional Right to Kneel? No, Actually

With Thursday Night Football kicking off shortly, the prospect of NFL players refusing to stand for the National Anthem is again in the news. When the issue is debated, it is common for observers on both sides to say that the players have a constitutional right, under the First Amendment, to kneel, sit down, or whatever. This actually is not correct. Under the First Amendment, players have a right not to be punished by the government for kneeling. Professor Teresa Stanton Collett of St. Thomas Law School makes the point:

I don’t watch football. I don’t care about football. But I do care about constitutional literacy. Please stop saying football players have first amendment rights to disregard the direction of their private employers while engaged in privately sponsored activities — which is what NFL football games are. They have no more constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any “rights” they have are based on their contracts and employment law.

This is correct. The First Amendment restrains the power of government. It doesn’t authorize employees to disregard their employers’ instructions on things like what socks to wear, how to celebrate in the end zone, or how to behave during the National Anthem. Years ago, Bud Grant, then coach of the Minnesota Vikings, thought that his team looked sloppy when it lined up for the Anthem. He devoted some practice time to proper deportment during the Anthem–how to line up, how to stand, and so on. You can be sure that kneeling was not part of Grant’s protocol.

What is happening currently is that the owners are cowardly. They are coddling protesting players by refusing to enforce their own rules, which do cover how to behave during the playing of the Anthem. That is their right, I guess, but they should take responsibility for their decision and not try to pass it off on the Constitution.

Let’s conclude with “a little perspective” from the world’s greatest cartoonist, Michael Ramirez. Click to enlarge:

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