By Mike Whitney
Do employers have the right to force their employees to participate in ritual displays of patriotism?
Many people think they do. Many people think that owners of football teams have the right to make their players stand at attention during the National Anthem.
But if bosses can require their employees stand for the anthem, then what’s to stop them from making them say a prayer too? It’s the same thing, isn’t it? In both cases, employees are being compelled to conform to behavior that may or may not be consistent with their own beliefs. How does that square with the First amendment or is that rule no longer applicable?
Here’s how the Supreme Court came down on the matter:
“The constitutionally guaranteed ‘freedom to be intellectually … diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”
Supreme Court of the United States in Street v. New York (1969)
Of course, that doesn’t explain whether employees have the right to express their beliefs freely in the workplace or not. That’s an entirely different question, and it’s one that has been answered differently by the owners and the players union. According to MSN News:
“A labor union that represents workers in Texas, Arkansas and Louisiana has filed a charge alleging that Cowboys owner Jerry Jones has violated the National Labor Relations Act with his threats to discipline players if they protest during the national anthem. Local 100 of the United Labor Unions filed the complaint Tuesday with the Fort Worth, Texas, office of the National Labor Relations Board. It asks the NLRB to “investigate preemptively in order to prevent illegal firings of players.”
Wade Rathke, chief organizer of Local 100, accuses Jones of violating the act, which prohibits employers from intimidating or threatening workers for their “concerted activity.”
Rathke said the NFL has already established that there is no condition of work that requires players to stand during the anthem. He said players have the right to protest and act concertedly at their workplace – the playing field. Jones is violating the act by attempting to prevent them from doing so, he said. (“Labor union files complaint against Jerry Jones over anthem threat “, MSN News)
“You can’t discipline somebody for something that is a right they have under the law, whether that discipline be termination or benching or giving a slap on the wrist or writing up in their files they’ve been a bad boy,” Rathke told ESPN. “I know in the modern age people think workers shouldn’t have rights, but they still do.”
Dallas Cowboys owner Jerry Jones takes an entirely different approach. He not only thinks he is well within his rights to require his players to stand during the anthem, he also cites an arcane excerpt from the NFL Game Operations Manual which appears to support his position. Here’s the excerpt:
The National Anthem must be played prior to every NFL game, and all players must be on the sidelines for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, facing the flag, hold helmets in the left hand, and refrain from talking. The home team should make sure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines suspensions and/or the forfeiture of draft choice(s), for violations of the above, including first offenses.”
Jones had the above quote in mind when he lowered the boom on his players on Monday saying, “If there is anything disrespecting the flag, then we will not play. Period. We’re going to respect the flag and I’m going to create the perception of it.” Jones also added that “there are no exceptions to this rule or this policy. Any player who disrespects the flag or does not stand for the anthem will not play in the game.”
So that’s that. The battle lines have been drawn and both sides are digging in. No matter how you cut it, there’s going to be a clash.
It’s not entirely clear why Jones decided to take such a hardline stance on the matter. After all, since the flap began in 2016 –when San Francisco 49ers quarterback Colin Kaepernick first sat out the anthem to draw attention to racial injustice and police brutality — not one Dallas player has ‘sat or taken a knee’ in support. Not one. In other words, it’s not a problem that’s effected the Cowboys at all. So why has Jones decided to spearhead this reactionary movement? And why has he put his own players in such a tough position where they either have to follow his diktats and seem like weaklings or “take a knee” and get scrubbed from the roster? Why?
Keep in mind, the reason Kaepernick’s protest has not caught on is not because black NFL players don’t think that police brutality is a problem. They know its a problem. Every black man, woman and child living in the US today, knows that police violence is a problem, just like they know that not everyone who lives under Old Glory enjoys the same benefits of security and freedom. They know that from their own experience, they don’t need Kaepernick to remind them of it.
But black athletes are like everyone else. They like the fame, they like the praise and they like money. What they don’t like is getting skewered in the media for defending unpopular causes. They don’t like that at all. That’s why– except for a few brave souls who have selflessly put themselves on the chopping block– the vast majority of black players have avoided the protest altogether. They’d rather just do their jobs, grab a paycheck, and get on with life like everyone else. How can you blame them?
But Jones has made that impossible. He’s drawn a line in the sand and forced his players to do something that many of them really don’t want to do, take a position.
Why? Why has Jones backed his players into a corner with no way to out? Does he want to inflame the situation even more? Does he want to exacerbate racial divisions? Does he want a bloody standoff that splits the country into enemy camps? What’s he trying to achieve??
Everyone knows what happens when you give a proud, successful adult an ultimatum.
They resent it. No one likes to be told what they can and can’t do, what they can and can’t say, and what they can and can’t believe. Nobody.
So why did Jones decide he had to be the big Bossman ordering his players around like they were his personal servants? That’s not the way you treat people, not if you respect them that is.
Jones did it because of Trump. That’s right, according to CBS News, Trump and Jones have been huddling on the issue and figured out how they wanted to handle it.. Here’s a clip from an article at CBS News:
“Jones also revealed that he’s been speaking with Donald Trump about the protests…..Trump…has made it clear that he believes players should be fired for kneeling during the anthem and that the NFL should create a rule to make it mandatory. A rule does not currently exist, but NFL spokesman Joe Lockhart said on Tuesday that “there will be a discussion about the entire issue.” (cbssports.com)
Trump also directed Jones to the NFL Game Operations Manual which suggests how players should behave during the playing of the anthem and the penalties associated with violations to the rule.”
Huh? So Trump actually had his lackeys dig through the NFL Manual to come up with something that would force the players to do as they were told?
Why? What possible benefit does Trump derive from turning a little NFL brushfire into a raging inferno consuming everything in its path? What does he get out of this?
Trump is just being Trump, a lumbering, opinionated troublemaker who gets his kicks out of knocking over furniture and breaking dishes. That’s Trump in a nutshell. But there’s something else going on here too. Trump seems determined to stomp out those ‘upstart’ blacks who use their celebrity to draw attention to social justice issues. He can’t allow that, after all, in Trump’s world the primary duty of law enforcement is to create a secure environment for the 1 percent to make bigger profits. That means that the actions of the state’s shock troops have to be defended tooth-n-nail no matter how repressive or violent they may be. That’s why Trump is reaching way beyond the president’s traditional purview to crush the protest movement, punish the instigators and collectively brand anyone who sympathizes with their cause as an unpatriotic flag-hating traitor. That seems to be the broader objective here. Trump is redefining patriotism as the mindless acquiescence to ritual forms of state worship (the likes of which were on full display in Nuremburg in 1938) rather than honoring the foundational principle of free speech which gives the flag its true meaning.
Trump’s open hostility towards the Kaepernick and his supporters has breathed new life into the protest movement pitting one group against the other. This latest stunt by Jones merely adds more gas to a fire that Trump would like to see spread across the country triggering a resurgence of his ever-dwindling right-wing base. This is the type of chaotic situation in which Trump excels, so NFL players should proceed with caution. Players must be disciplined, restrained and “on message” if they hope to succeed. And, they can succeed, in fact, they can win big!
Players believe they have a constitutional right to express themselves in uniform in their workplace. But do they?
According to Judge Andrew Napolitano,
“It depends where the players are when they take a knee. Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one’s head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.
Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management’s political or patriotic views constitutes interfering with speech. May employers do that?
In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so….
However, even in the states that lack the employee expression protection, if management’s instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.”
“Is Taking a Knee Protected Speech?”, Andrew Napolitano, Lew Rockwell.com
The point is, the issue is not ‘cut and dry’, there appears to be some gray area about the legality of the protest. There is, however, broad public consensus that the players have the right to peacefully demonstrate. And this is crucial, because public opinion is going to weigh very heavily in the outcome.
It’s worth noting that the NFL honchos have taken a completely different approach than Jones or Trump. The league has not changed its position on sitting during the anthem. They don’t like it, (it hurts their brand), but they will tolerate it. Also, the league has not issued any edicts that forbid the protest, in fact, NFL commissioner Roger Goodell has been unusually conciliatory in his public statements. Here’s what he said on Wednesday:
“What we’ve had is unprecedented dialogue over the last year with our players, our owners, with community leaders and law enforcement. What we plan to do is have a very in-depth discussion with the players and owners next week to make sure we truly understand the issues and also understand the approach we want to take together with the players to address these issues in our communities.”
“What we want to do is get back to focusing on the actions that we want to take to really improve our communities and support our players to get things done…We want to get to from our current situation to where we are really making a difference in the community and get involved in action that is going to have a positive outcome for our law enforcement, for our communities, and for our country overall….
“I do think there’s a sense of urgency because we want to get in the communities and make a positive impact. It’s important for us to continue to work together. The urgency that we all feel is continuing the work that we are doing, keeping focused and having a positive outcome for our players, our communities, our teams, our fans and for the leaders in our communities.” (“Roger Goodell: ‘No policy change’ on national anthem”, nfl.com)
I’m not so gullible to think that Goodell’s promises are anything more than pleasant-sounding bromides designed to end the protests and get back to the business of making money. But it’s a heckuva lot better response than Jones or Trump’s. And Goodell’s comments also show that Kaepernick’s efforts have had an impact. One man has made a difference. The conversation has shifted (in some quarters) from the players actions to police violence, broken communities and racial injustice. This is progress. It’s just one small step in the right direction, but it’s a start.