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The NFL’s Anthem-Protest Rule Is Not a Threat to Free Speech

New England Patriot players during the National Anthem at Gillette Stadium, September 24, 2017. (Photo: Greg M. Cooper/USA TODAY Sports/via Reuters)

Freedom of speech is a legal right in America, within limits. The First Amendment and state constitutions protect you from the government: It can’t prevent you from speaking, and it can’t punish you for speech. Some laws also protect workers from retaliation for specific kinds of speech. But the law leaves a lot of room for private citizens, businesses, and other groups to punish and suppress speech they don’t like or find offensive. And in some extreme cases, that leeway allows private actors to express the necessary moral judgments of society.

But free speech is also a cultural value and a God-given natural human right. It had to be recognized as such before it gained legal protection. And if the cultural value of free speech collapses or is constricted to a very narrow range of approved opinions, the erosion of its legal protections won’t be far behind. It’s up to conservatives, who after all believe in conserving our cultural heritage and thinking through rules beyond each day’s individual controversy, to protect a broad space for that value — “if necessary for years, if necessary alone.”

That’s what David French argues in a fantastic New York Times essay knocking conservatives for abandoning free speech when it comes to NFL players kneeling to protest the National Anthem:

Fight for the rights of others that you would like to exercise yourself. Do you want corporations obliterating speech the state can’t touch? Do you want the price of participation in public debate to include the fear of lost livelihoods? Then, by all means, support the N.F.L. Cheer Silicon Valley’s terminations. Join the boycotts and shame campaigns. Watch this country’s culture of liberty wither in front of your eyes.

In general, I agree with a lot of David’s point, though before I get to my point of departure, it’s worth noting the larger debate here over tactics. Specifically, there’s something to the “new rules” ethos of a lot of people on the right, who take the view that left-wing assaults on free speech and the culture won’t end until the aggressors are given a downside — until businesses like the NFL are as afraid of angering the Right as they are of the Left, until left-leaning individuals and institutions are made to (as Saul Alinsky put it) “live up to their own book of rules.” Much of the activist enthusiasm over getting the NFL to move on this issue has had a strong flavor of “finally, we won one.” That sentiment is why President Trump and Vice President Pence have kept jumping back into this fight, doubling down on Trump’s predecessor’s penchant for inserting himself into all sorts of controversies that were none of the presidency’s business to score culture-war points with his base, and — in the case of Trump — pouring gasoline on this particular controversy when it seemed to have died down.

There’s a time and a place for the “Chicago Way” kind of thinking, but over the long run, it’s not a battle the Right can win, even if we should wage it. Very few of these kinds of controversies involve the straightforward defense of such a broadly galvanizing topic as the National Anthem or the American flag, and ordinary right-leaning consumers are far less easily activated to boycotts and shame campaigns than the Left. Our side simply doesn’t have enough troops, enough anger, enough willingness to commit to the thoroughly politicized life. It’s also an asymmetric war: Conservatives are more vulnerable to retribution due to being more likely to have families to support than is the activist Left.

But tactics aside, I part company with David here on an important point: The NFL’s response is much more limited than the firings of people in Silicon Valley or academia that he cites. All the league did was bar players in the future from protesting publicly during the Anthem — and it allowed them to stay in the locker room if they were unable or unwilling to honor the Anthem without protesting. Nobody was fired (one can debate whether Colin Kaepernick has actually lost job opportunities, but that’s not the league’s doing). Nobody was punished at all for anything they did in the past, just told to abide by clear rules set in advance for the future. Players remain free to speak out on issues like police brutality just about anywhere at any time they want — in postgame locker-room interviews, on Twitter, using the celebrity that their jobs in the NFL gives them — just not on the field during an officially sanctioned league-mandated ceremony. Nobody is even required to attend the Anthem, as they are in the NBA.

Why does that matter? Because the NFL, as an association of individual owners, has free-speech rights, too. The league’s fans didn’t react with anger just because it employs people who protested the National Anthem, but because the protests were happening inside the stadium and on TV during a league-mandated ceremony, and that led people quite reasonably to believe that the league was at least tacitly associated with it. NFL owners have the right — not just the legal right, but the free-speech right — to make clear to the fans that they don’t endorse this kind of thing. And they’ve used that right before on the other side of the law-enforcement issue, when the NFL previously banned the Dallas Cowboys from wearing helmet decals honoring cops killed in the line of duty. As David Marcus has noted, “When the Cowboys wanted to send the message that police officers should not be hunted and assassinated, the NFL gave a clear answer: no.” By contrast, the league uses that same platform to make its own statements about less polarizing messages (e.g., breast cancer awareness), and it allows ad hoc groups of players to gather on the field for more obviously individual activities (post-game prayer) that are clearly not league-sanctioned or organized.

To pick one of David’s examples, many conservatives were concerned when Google fired engineer James Damore over the content of a controversial memo about gender that he circulated on an internal message board. But whatever you think of that decision, if Google had simply told employees to stop using the company message board for that kind of discussion, few people would have been particularly upset. And what the anthem protestors are doing is more like if Damore had posted his memo to the Google homepage for all its customers to see under the company logo. The NFL’s actions here look to me like no more than is necessary to send the message that the league doesn’t stand by the Anthem protests. So long as the NFL itself has free-speech rights, that’s not just within their legal rights, but their natural rights to control their own message.


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