Posted on 10/9/17

During the national anthem of the Monday Night Football game between the Dallas Cowboys and Arizona Cardinals on September 25, 2017, Cowboys’ fans watched as the entire Cowboy team, including owner Jerry Jones, kneeled. This ignited passion from the fans. Many supported the players, expressing admiration for taking a unified stand on behalf of social justice. Others were mortified, feeling that the players disrespected the flag and the country, which is the country allowing them to collect multi-million dollar paychecks for playing a game.

In the aftermath, local and national talk radio and the print media were vocal about their opinions. This is in addition to social media, which has been pushing for such an event for some time. Talk radio, especially sports talk radio, emphasized the players’ First Amendment rights and their freedom of expression. This, talk radio surmised, is the ultimate expression and meaning of the flag.

While it makes for good drama, the First Amendment is not relevant to this discussion. While a person has First Amendment rights that limit or eliminate criminal liability for certain actions, a basic understanding of the First Amendment’s relevance demonstrates its inapplicability to the discussion.

The First Amendment

The First Amendment to the United States Constitution states: “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.”

The language in the Amendment is “Congress,” which the Supreme Court ruled also applies to all phases of government, including state and local governments. As the term Congress equals government, the First Amendment is only applicable between an individual and the government. That is to say, the government or government actor is legally barred from inhibiting an individual’s First Amendment right of speech, expression etc. When the relationship in question is not between the government and an individual, say between two individuals or between a corporation and an individual, the First Amendment is not applicable.

Note that other than the Thirteenth Amendment (which outlaws slavery between individuals etc.), the other amendments, like the First Amendment, rule the relationship between the government and an individual.

The Dallas Cowboys’ First Amendment Rights

Unquestionably, the Dallas Cowboys have a First Amendment right to express themselves with respect to social justice issues. If the police, as government actors, arrested the Dallas Cowboy team for kneeling during the national anthem then their First Amendment rights would trump any criminality issues for kneeling. However, the issue is, according to President Trump, whether the team should  fire players for expressing themselves. Because this issue is not criminal in nature in regard to the government, the First Amendment has no role.

While there may be labor and employment issues when employers fire employees for protesting what the employee deems as social injustice, such laws are not constitutionally based.

if you have been arrested then your First Amendment rights may have been violated. Contact an experienced criminal defense litigator. Speak with Christopher Abel.

(image courtesy of Nathan Shively)


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