Taking a Knee Could Get You Booted

The present dust up over NFL players who kneel during the traditional presentation of the flag and singing of the National Anthem at football games has all sorts of facets.

One facet that has not been fully explored is the issue of employees’ right to freely express themselves. Most of the news stories about this topic  cast this as a debate over the players’ right to exercise their First Amendment rights on the field which is their work space. They invoke the First Amendment to the U.S. Constitution as the guarantor. To clarify: the First Amendment prevents the government of the United States from making any law “abridging the freedom of speech”. But the current debate on the issue concerns the matter of the NFL (a private firm) allowing players to protest by kneeling during the presentation of the U.S. flag and playing of the National Anthem.

First, to make it clear: there are limits to any citizen’s free speech rights which are pretty much universally accepted in this country. Even though the right to protest or the right to express one’s views is protected by the First Amendment libel and slander are not protected. Neither is speech that is discriminatory or sexually harassing or likely to incite illegal activity.

Many employees, especially those who once lived under authoritarian rule, believe that they “live in a free country” and that the Constitution protects their freedom of speech from restrictions imposed on it by their employer. As the Gershwin song goes: It ain’t necessarily so. The First Amendment only protects citizens’ free speech against government restrictions. Constitutional rights do not necessarily apply at the work site and some court cases have established that the employer’s control over an employee’s speech may even extend beyond the work site and during non-work hours.

As employees of the federal government, the First Amendment does apply to members of the AFGE Local 1812 bargaining unit. However, even if you work for the federal government the courts have determined that it is a balancing act between the employee’s free speech rights and the impact of the employee’s speech on the Agency’s operations. We have had cases, for example, in which the agency has sought to discipline employees who have spoken to the press about problems they have identified at the Agency.

In the case of the NFL players, their employer is not the government but a private entity. The NFL probably could establish a policy that prohibits players from kneeling (or doing anything else that the NFL decided was detrimental to its operations or image) during the presentation of the National Anthem. AFGE Local 1812 is not suggesting that the NFL should do this, just that it probably could.

Although the First Amendment does not fully protect an employee’s right to free speech of any kind at work, there are some protections for private sector employees such as the whistleblower law. In addition, the National Labor Relations Act protects speech regarding wages, hours, and working conditions. But even then, there is a balancing act with the employer’s right to protect the business.

Kneeling during the National Anthem has been identified by the players as a protest about the treatment of African Americans by law enforcement. It is hard to see how this issue could be considered as being about wages, hours, or working conditions.

So, why does the law give one’s employer the right to restrict so much of one’s speech? It would be beneficial to see a more thoughtful discussion about the extent to which an employer has the right to restrict an employee’s speech. The present situation with the National Football League players’ protest could be the impetus to spark that healthy debate.