One of the key reasons many journalism programs include a J-law class is to make sure you fully understand the rights that are afforded to you as a citizen and as a member of the media. (This, of course, goes against the popular theory that students have, which is the class is there to see how quickly a GPA can crash and burn after a single semester.) In many cases, people think they know the law after watching a few episodes of “Law & Order” or hearing a couple words that sound legal like “libel,” “habeas corpus” and “cappuccino.” (If I had a nickel for every time someone threatened to sue me for libel, when it was clear they had no idea what they were talking about, I could keep an old-fashioned slot machine spinning for quite some time.)
The National Football League made a recent rule change that had people arguing about the law and how it works in relationship to free speech. Commissioner Roger Goodell announced Wednesday that the league would fine teams if they had players who failed to stand for the national anthem. Over the past two years, players have kneeled or refused to stand for the anthem as a protest against racial inequality and police brutality, a movement started by Colin Kaepernick.
The NFL’s announcement has led to the question of freedom of speech, freedom of expression and the rights of the players in the NFL. In a satirical piece , The New Yorker noted that the NFL “added the First Amendment to its list of banned substances.”
We talked a bit about the reasons the First Amendment doesn’t do everything people thinks it does when we covered Harley Barber, the Alabama sorority member who took to her “finsta” to spew racist language. Given this set of concerns, it’s important to take a look back at the First Amendment itself and some of the misconceptions people have about it:
No one can stop you from publishing content or expressing yourself: The First Amendment clearly notes, “Congress shall make no law,” which was later extended to all forms of government. However, the government isn’t the only body or organization that can prohibit you from publishing things. Corporations that own your newspaper or magazine can prohibit certain things from being published. The Federal Communication Commission has a say in what can and can’t be done on television news. Even certain web platforms place specific rules and regulation about content in their user agreements. In this case, the NFL is a private entity that can make certain rules and regulations for its players, and this happens to be one of them. The new rule might be popular or unpopular, but it doesn’t violate the First Amendment. In addition, the consequences of his choice to kneel have been severe for Kaepernick, who was unable to find a team to quarterback after he protested in this fashion.
Nothing bad can happen to you after you publish or express yourself: The ability to publish without governmental prohibition isn’t as great as it sounds in some cases. People erroneously equate “free press” and “free speech” with “consequence-free press” and “consequence-free speech.” Whatever you publish can run afoul of the law and that can lead to some negative outcomes. If you publish incorrect information that harms someone, you can end up on the wrong side of a libel suit. If you enter a private area without permission, someone might sue you for invasion of privacy or trespassing. Even if you publish accurate information, you could still be harmed in the “court of public opinion,” with readers turning their backs on you. The First Amendment doesn’t protect you from every potential harm, so you need to be careful with what you publish. It also doesn’t mean that there won’t be backlash for the NFL or its players.
The First Amendment is clear and absolute: The amendment is neither of these things, as the government has limited speech and press during times of war, as it did with the Sedition Act during World War I and with the Smith Act during World War II. Courts have limited speech with time, place and manner restrictions, prohibiting people from doing certain things at certain times in certain areas. Although the phraseology of “Congress shall make no law” sounds like a rock-solid judgment from on high, plenty of people have found out the hard way that the First Amendment is open to interpretation.
In the end, the NFL will be able to stand on this from a legal standpoint as far as the First Amendment is concerned. However, as the players, owners and fans debate and discuss the merits of this rule, other consequences may develop for any or all of them.