First Down, First Amendment: The NFL and Free Speech

After months of violent street protests across the nation, and with college campuses seeming to have lost their will to defend unfettered debate, the most salient free speech lesson this season comes to us courtesy of professional football.

The sight of players kneeling during our national anthem understandably evokes strong, emotional reactions. But that’s the thing about free speech. Whenever our most precious right makes the headlines, it’s because someone has said or done something that someone else finds deeply offensive.

Whether you see those National Football League players as coddled millionaires disrespecting our sacred symbols and institutions, or as principled young men courageously demonstrating against racism (and there are solid cases to be made for both positions) step back and you’ll see a textbook case in how free speech is supposed to work.

First, President Trump blew the lid off a long-simmering controversy by urging NFL owners to fire any “son of a bitch” who refuses to stand for the anthem. Let’s keep in mind that in many countries, a “suggestion” by the head of the government is the same thing as a command. Yet the response from the football community (including normally reserved coaches and owners) was one of widespread condemnation of the president, and defense of the players.

Broadcasters joined in. Hall of Fame quarterback Terry Bradshaw, now an announcer for Fox Sports, questioned whether the president quite understands the Constitution he is sworn to protect. And while kneeling during the anthem is against NFL rules, the league has thus far declined to discipline or fire players for doing so.

Fans have exercised their right to boo or cheer as they see fit. Many have turned off their televisions, burned souvenir uniforms, and sworn to boycott future games. Attendance and viewership are down this year. These reactions, too, are well within the bounds of reasonable expression. Freedom of speech does not mean freedom from consequences.

Everybody, it seems, has shared heartfelt opinions, but so far there has been little evidence of violence or even the threat of violence to intimidate others into silence. Thus the practitioners of one of our most violent games—often cited by detractors as evoking our most brutal characteristics as a nation—have taught everybody a lesson in peaceful dissent and debate.

And when the anthem ends they all go out and play football.

To some, the kneeling controversy represents a low-point for the country. The Wall Street Journal captured this sentiment in an editorial lamenting that the dispute represents “a very unhealthy level of polarization and mistrust.”

I disagree. We may love or hate the individual opinions being expressed. But as free speech debates go, this one is about as healthy as it gets.

Note: See the terrific new site First Amendment Watch for a detailed look at where the NFL kneeling controversy and similar protests fit in the long history of American dissent dating to Revolutionary times.