A received some feedback in relation to my answer to this question relating to the whole kneeling/sitting issue.
- A fireable offense?
My answer was “no.” Others disagreed with my answer. So, who is right?
I’m not a lawyer, but I will speak as if I did a lot of research in defending my answer.
As THIS, and THIS, and THIS, and many more articles state, the First Amendment does not offer any protection from being fired for expressing a personal view. Some of the examples cited are actually quite amusing, although, to be fair, they probably were not amusing to the people involved.
There are employment laws that protect you from being fired for discriminatory reasons but, to date, those reasons do not include political expression.
The reason so many lawyers when asked if players can be fired answer “yes” is because — in my non-lawyery opinion — they are asked the wrong question. The question should be, can a private company force you to stand for the Anthem?
Also, note that all the lawyers who answered did so in typical lawyer fashion . . . they used words that qualified the answers; likely, probably, not typically, I doubt it, technically.
That’s because this has not been tested.
Note also that I specifically said that an employer would find other ways to get rid of you. That is the practical employer reaction when an employee becomes a problem. In fact, CK is — to date — not working. No one admits as to why, but the reason seems pretty obvious even to Trump who is taking credit for decreasing the employment rate of one individual . . . but he should be careful . . . he is a government employee and a rather special one. When he speaks as the president, he may not enjoy the protection of the First Amendment. You can read about that HERE.
But, getting back to my answer and my weasely way of justifying it. I was speaking — and still am — based on my practical understanding of what might happen. In that regard, I was swayed by articles like these (I quote portions of the articles):
. . . is one excerpt supporting the owner’s right to act: “Article 46 expresses that the commissioner can punish players ‘for conduct detrimental to the integrity of, or public confidence in, the game of professional football.’” And SI said the “player would contend that a peaceful protest to the anthem could not plausibly be considered a threat to the ‘public respect’ and ‘public confidence’ in the game. After all, the right to political protest is a core American value and one that distinguishes the U.S. from many other countries.”
The 49ers are keenly aware of the media interest generated by Kaepernick’s protest and they wisely do not want to be seen as averse to his cause. That’s not to say they will stand idly by if Kaepernick’s protests became more demonstrative or dangerous or caused so much disruption or divisiveness that it began to actually harm the organization. After all, professional football is a business, and one employee (particularly a backup quarterback) is rarely bigger than the organization as a whole.
Note, the matter has escalated and now involve many more players, making it unlikely this will be tested in court. It’s also unlikely that the next round of negotiated contracts will include “must stand for the anthem”.
“We’re talking about to what extent employees are able to maintain their constitutional rights in all spheres of their life,” said James Bhandary-Alexander, a visiting lecturer at Yale Law School who has brought cases under a Connecticut law that restricts companies from firing workers for exercising of First Amendment rights. “How important are our constitutional rights if an employer can fire us for exercising them?”
There are a couple of more articles I read that I’m trying to find and if I do, I’ll add them here.
BUT . . . note that with regards to my answer, I hang my hat on the difference between what is strictly legal and what might happen if this is tested. I believe that in this case both the race of the person involved and the issue he’s protesting changes the dynamic of how these things might play out. Even there, I could be wrong because this also falls squarely in the court of public opinion.
The sad thing is that in 31 states — unless covered by a union contract — an employee of a private company can be fired at will even for exercising his right to free speech because, strictly speaking, that only protects you from the government. In that, my detractors are 100% right. That’s somewhat mitigated by laws regarding race, gender, sexual orientation, age, and a few other types of discrimination, but political speech is not included on the list.
If you want to get depressed about how much power companies have over their employees, read THIS.
However, understand this is a dynamic situation and there are practical aspects companies take into account (unless the bosses are total jerks) such as public perception, potential litigation cost, and so on.
All that under consideration, I’ll stick with my answer, at least in the case of unionized players. Eventually, I hope that someday — unionized or not — we’ll all have the same rights.
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