The National Football League team owners announced a new policy requiring team and league personnel to choose between staying off the field or standing during the National Anthem.
The decision was initially presented as unanimous; turns out, it met with resistance from several team owners. Jed York, owner of the 49ers, abstained; Christopher Johnson, who owns the Jets, has stated that he will not fine players who violate the policy.
Reactions ranged from concerned to parodical. Those voicing outrage tended to hang their critiques on the First Amendment. Malcolm Jenkins, who plays for the Eagles, claimed the policy “thwart[ed] the players’ constitutional rights to express themselves.” Teammate Chris Long backed him up.
Law professor Eugene Volokh argues that there could be a problem under state law:
A considerable amount of states including those that have NFL teams and stadiums do in fact have laws that bar private employers from retaliating against employees because of their political activity.”
On a very different note, The New Yorker’s Andy Borowitz penned a post entitled “NFL adds First Amendment to list of banned substances.”
Roger Goodell, the commissioner of the National Football League, said that, by adding the First Amendment to the list of banned substances, the N.F.L was establishing a “policy of zero tolerance on tolerance.”
In order to enforce the ban, Goodell said that players would be tested periodically to determine whether they had used words, gestures, or facial expressions that are strictly prohibited under the new rule.
Mocking Trump’s enthusiastic endorsement of the announcement, Borowitz continued:
Speaking at the White House, Donald Trump applauded the league for banning the approximately seventeen hundred N.F.L. players from exercising freedom of speech, and expressed hope that the ban could eventually be expanded to include the other three hundred and twenty-five million Americans.
The joke, of course, is that Goodell and team owners are free to impose restrictions on players under contract, but if Trump or any other government entity tried to impose the same types of limitations on speech, that would constitute a violation of the First Amendment.
The NFL’s policy is deeply problematic, but not because it violates the Constitution. Rather, the major flaw is that Goodell’s mandate is he’s taking the wrong approach to quelling discontent.
Players are raising a valid set of concerns. But rather than building trust with personnel and teams, as has happened in the NBA, as ESPN’s Dan Graziano points out, the NFL is shutting down the conversation altogether, limiting players’ outlets for expression and advocacy, and imposing penalties. That’s not good for any of the parties involved, least of all the NFL writ large.