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Is NFL’s new ‘anti-kneeling’ rule unconstitutional? The answer will surprise you

Photo: A.R. Shaw

Photo Credit: A.R. Shaw for use by Steed Media

In an eyebrow-raising rule change, the National Football League, or NFL, has implemented a fine for players if they choose to kneel during the national anthem. The news, not surprisingly, has been met with shock, disbelief, and has caused many, including NFL players, to speak out via social media.

Dawuane Smoot, a defensive end for the Jacksonville Jaguars, tweeted, “Freedom of speech does not exist for NFL players now, we get fined for protesting for something we believe in, FINE ME!!!! You can’t change my opinion, and can’t stop my protest I have a right as an American to protest when I feel there is injustice in this country. Shaun Prater, a cornerback and former Cincinnati Bengal, tweeted, “With this rule the NFL is breaking all players’ constitutional rights to free speech and expression. Nowhere in the constitution does it state forced patriotism is legal and required by citizens. #Losing in terms of a country, profit means more than integrity.”

The genesis of the kneeling for the anthem began, many will remember, when Colin Kaepernick, then quarterback for the San Francisco 49ers, famously took a knee in silent protest to bring awareness to the mounting instances of police brutality in this country. It’s not something that anyone asked him to do, much like when Muhammad Ali spoke out about injustices during Jim Crow days, it was something that both men felt like was the right thing to do. The inherent character, integrity, and courage that both Colin and Ali have are to be admired as so many people today are afraid to take a stand for something they believe in based purely off the fear of what consequences may occur.

The question remains – is what the NFL is doing constitutional and does it violate the players’ rights? The answer, in short, is yes – it is lawful and constitutional.

The First Amendment reads as follows;

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

According to an interview with the Washington Post, constitutional experts say “since NFL teams are private companies it makes the First Amendment a moot point…players can be subject to discipline or termination as employees if they don’t follow the league rules.”

It appears the NFL has found a sort of loophole to ensure that players continue to play and not express any opinion that may cause a media frenzy. While the NFL did give the players who wish to protest the option to remain in the locker room during the anthem, the rule itself reeks of censorship, lack of empathy, and is largely tone-deaf given the large majority of NFL players are African American. It is worth noting, however, that some states do have laws that prevent private employers from retaliating against its employees for their political thought or affiliation. Unfortunately, since the NFL gave the players the option to “protest from the locker room” this again serves as a swift blow to any objection to the rule. One must also understand that just because something is “legal” doesn’t make it any less evil or morally corrupt, such as chattel slavery and Jim Crow laws.

As more and more players, sports commentators, and team owners speak out about the new ruling, it will be interesting to see exactly what will happen once the NFL season begins next fall.