The act of NFL players kneeling during the national anthem in protest of police brutality has sparked heated debate. But what are the players, and even our own, legal rights to express ourselves this way... to ‘freedom of speech’? We’ve got you covered. Here with what you need to know is Shari O.
Let’s start with where the right to free speech comes from and what it means for us?
FREEDOM OF SPEECH
“Congress shall make no law… abridging the freedom of speech… or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The First Amendment to the U.S. Constitution was one of ten amendments, known as the Bill of Rights, adopted on December 15, 1791. In a nut shell, it says that laws can’t interfere with our freedom to speak our minds. But, like much of the Constitution, it’s pretty vague. For example, what does and does not qualify as interfering? What qualifies as speech? And how far can someone go - at what points do public safety and other interests prevail? These and other specifics have evolved over centuries of real life situations, court intervention and interpretation including protests leading to women’s right to vote, civil rights protests, anti-Vietnam War protests, all important social outcome and all the products of free speech. This, in contrast, to countries like China, where individuals, organizations and companies can be silenced, imprisoned, even put out of business for expressing prohibited ideas or content. Today, what freedom of speech means to each of us is that we’re legally allowed to express ourselves, (A) verbally or in other forms, including hate speech (B) but certain restrictions on time, place and manner (including to keep things safe) are legal as long as they’re content neutral (in other words, restrictions can’t affect some messages but not others) and they still allow adequate space for free speech. (C) And this right does not mean we can engage in violence. If speech is a true threat or harassment — causing a person to reasonably fear imminent physical harm — it is not protected by the First Amendment. (D) Nor does it extend to private places. Every day across America, employees less famous than star athletes are fired for saying things their bosses don’t like — even for displaying political bumper stickers on their cars. Our right to free speech continues to be balanced with other priorities and evolve.
How does this apply to NFL players kneeling at games?
- ‘Speech’ Content
- Work Place
This is a great example of that balancing and evolution. The speech or content in this case is kneeling while the national anthem is playing. Kneeling to protest police brutality is, on its own, protected by the first amendment. It certainly doesn’t threaten or put anyone at risk. In fact, kneeling has the opposite effect -it’s definitely not threatening. And stadiums are often at least partially publicly owned or funded. But the players are doing this during their work time. It would be up to their employers to decide if that’s ok or not. The players have made it clear that they’re not saying anything about the American flag or military, but if they were, even that speech would be legally protected. Musicians, actors, and even prior athletes have expressed their freedom of speech in countless ways like this before.
What impact is all of this likely to have on our right to free speech?
- University Speakers
- Internet Vitriol
This is a hot issue now. It’s come up after Charlottesville in terms of whether the right to free speech protects Neo-Nazi and white supremacists from marching. It’s come up on college campuses across the country as extreme groups line up speakers and universities are essentially forced to spend their budget providing protection because they can’t interfere with the right to free speech. And other students object because they feel the speech is hateful, for example. Over 300 colleges and universities adopted hate speech codes in the early 1990s. Every one challenged in court was ruled unconstitutional. And now we have doxing. What’s interesting is that so many younger Americans seem to associate free speech with the vitriol of the internet, more than with the civil rights and other important movements. In some ways, it’s not the more liberal folks who used to support free speech that seem to be objecting to it.
Generally speaking, as long as you’re not in a private place, you’re following any TPM restrictions that may be in place, you’re not causing anyone to believe they’re in imminent physical harm, and you’re not violating other laws such as slander, you’re free to say what you want.