This week, the country finds itself in yet another legal discombobulation occasioned by President Trump’s constitutional boundary-pushing. And once again, misinformation is lighting up cyberspace.
The latest #TakeAKnee controversy involving professional athletes’ “right” to kneel during the national anthem has prompted multiple questions about the players’ — and Trump’s — First Amendment rights to free speech. Some of the arguments lobbed across the Twitterverse were filled with vitriol.
Why are "patriotic" Trump supporters more mad at Kaepernick than Trump trying to infringe on our First Amendment? #TakeTheKnee— Becca Sutherland (@BeccaSutherlan3) September 24, 2017
Everyone has the right to practice their first amendment rights. Even if I disagree with it, they have a right to peaceful protest.— Joseph (@deboer_joey) September 25, 2017
My guess is that very little of the back-and-forth ended in consensus. So, constitutionally, who was right — and who was wrong — about the First Amendment and its protections?
Are the players covered by the First Amendment on the field? Did Trump infringe on that right? Or as some have argued, was Trump — “like all Americans” — simply exercising his own right to free speech?
Elected officials have no business telling private entities to fire their employees for exercising the first amendment pic.twitter.com/iIUrO10aGi— Albert Ruiz (@databreak) September 25, 2017
Let’s start with the First Amendment itself. In a recent poll of 1,013 adult Americans, a stunning 37 percent couldn’t identify a single right guaranteed under the First Amendment, which protects individuals’ rights to free speech, religion, press, assembly, as well as the right to petition the government.
Now, let’s get it straight: Was quarterback Colin Kaepernick exercising his First Amendment rights when he knelt during the national anthem last season to protest racial discrimination? Were the players, coaches and owners doing the same when they locked arms, knelt or — in the case of the New York Giants’ Odell Beckham — celebrated a touchdown by acting out a dog urinating? (SOB pun intended.)
The answer is no.
That’s right, no. And yes, I get it — half of Twitter can’t be happy right now. But it’s a fact of life when it comes to the Constitution that the free speech guarantee restricts only government action — not action by private employers. If, by contrast, Kaepernick were hauled off by the Secret Service or D.C. police for peacefully kneeling as a bystander during a presidential inauguration on the National Mall, he would have a First Amendment gripe against the government because the government retaliated against him for his speech.
Across town, however, on any given Sunday at FedEx field, football players are private-sector employees. As employees of NFL teams, Kaepernick and other players act under the terms of their contracts while on the field. As a consequence, their employers could have probably told them to stand during the anthem.
So, how can it be that, by acting in solidarity to protest racial discrimination, the players weren’t exercising their right to free speech?
The answer comes down to what it means to have a constitutional “right” in the first place. To understand the idea, imagine that each American (and to a lesser extent, non-citizens who are in the United States), walks around with a bag of gadgets. Each gadget has a superpower tied to a provision of the Constitution. The gadgets can be pulled out at will to fight back against government overreach. The government throws you in jail for protesting peacefully against U.S. policy towards North Korea? Pull out your First Amendment gadget, and maybe your Due Process gadget, to get yourself out of jail and maybe even get money from the government to compensate you for the hassle.
A “right” finds its true power when the government tries to squash it.
Which brings us to Trump himself. Was President Trump exercising his First Amendment “right” to call a player kneeling a “son of a b****”? Or put differently, would a court be “infringing” on Trump’s speech if it ruled that he couldn’t continue those tweets? The answer here is: probably not.
In Trump’s defense, the First Amendment does extend to all viewpoints — whether virtuous or evil. But like most of the Constitution, the right to free speech is not unlimited — for anyone. It does not protect people wishing to express themselves through obscenity, child pornography, threats of violence, someone else’s intellectual property, lies in an advertisement, and so on.
For First Amendment purposes, it also matters that Trump purports to speak as the President when he tweets. Trump’s tweets as president would not get the same First Amendment protections that a private citizen’s tweets would if their constitutionality were ever decided in court. In a case called Garcetti v. Ceballos, the Supreme Court held that when public employees are not speaking as citizens — but instead in their official public capacities (here, as president) — the First Amendment does not protect them from being disciplined for their speech.
So, again, the answer is no: Trump does not have an unqualified right as president to tweet whatever he wants.
Kimberly Wehle is a professor of Law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater Investigation and author of the forthcoming book, “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”