Tuesday, September 26, 2017

Free Speech Rights

Trump vs. NFL
Right: "A moral or legal entitlement to have or do something."

-- Concise Oxford English Dictionary, p. 1238, "right. n.2"
As you may have noticed, the latest target of the President of the United States, right up there with North Korea, appears to be the National Football League (NFL) organization, owners, coaches and players. The kerfuffle involves, in part, the players' "right" to express disagreement with the president by failing to stand or otherwise participate in national anthem ceremonies prior to football games. (The protest involves both his attacks on the NFL, and his less than firm rejection of systemic and overt racism, neo-Nazis, and unwarranted police shootings of African-Americans.) [Photo credit: The Tennessean. Detroit Lions players "taking a knee" during national anthem, Sept. 24, 2017.]

At least for today, I will leave to others the effectiveness of this mode of protest, the cultural role of the national anthem, the Pentagon's payments to the NFL (plus fly-overs and other efforts to militarize sports), colleges' treatment of athletes (especially women), football's concussions and other health hazards (especially for players under 18), and other issues.

My limited focus at the moment is the widespread use of the word "rights" in this dispute -- especially the express or implied suggestion that the players' "constitutional" or "First Amendment" rights are somehow involved.
What follows is not a "legal opinion." If you have a personal stake in these issues, talk to your lawyer. There are constitutionally acceptable limitations on First Amendment "rights" (e.g., you cannot lie in your stock prospectus, operate a sound truck through residential neighborhoods late at night, falsely shout "fire" in a crowded theater, advocate "imminent lawless action," or joke with the airports' TSA employees, among a great many other examples). Outcomes turn on the applicability of law to, and the specific facts of, individual cases.
Call me fussy if you must, but the relevant language of the First Amendment is, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." Since its adoption, the word "Congress" has been interpreted to mean any form of "state action," whether by Congress, the executive branch, states, cities, or state universities.

Among the values, or consequences, of the First Amendment are (1) its role in meeting the needs of a self-governing citizenry to be informed, (2) its importance to the search for truth in a "marketplace of ideas," (3) its relationship to the "checking value" of the media, as it watches for, and reports, abuses by large institutions, (4) its bearing on "self-actualization," basic liberty, and individual freedom, and (5) the "safety valve" it provides, permitting dissidents the opportunity to express their dissatisfaction verbally, rather than through violence.

Variations on the values represented in that constitutional language, the reasons for its existence, may be equally applicable elsewhere by virtue of social norms or a moral entitlement referenced in the definition of "right," above.

Parents and teachers may reject the old adage, "children should be seen and not heard," believing that children (and adults!) will benefit when children are encouraged to speak. Employers may choose to reward, rather than punish, workers' desire to participate in management by criticizing present procedures and suggesting improvements. A university president may welcome, rather than resist, "shared governance" with the faculty.

But these applications of First Amendment values in other contexts do not constitute the bestowal of constitutional or legal rights on children or employees. The First Amendment does not say, and has not been interpreted to mean, that "no institution or individual shall abridge the freedom of speech of another." Other applications of First Amendment values are merely opportunities to speak, bestowed as a matter of grace, not as a matter of legal right.

Do NFL players have a First Amendment right to speak (by words or actions) from the football field, during a nationally televised game, on matters other than football? No; not unless their speech is being restrained by "state action." I'll leave to others whether the President's efforts to silence them could constitute that state action. Their right to speak could be granted by some other constitutional provision, federal or state law or administrative regulation, or a contract provision, just not by the First Amendment.

In what sense could someone have a "right" to violate an express prohibition of particular speech? In the case of government laws and regulations, the violation could be "civil disobedience" -- deliberate violation as "speech," protesting the law, knowing that there will be punishment for doing so, and with a willingness to accept that punishment (fine or imprisonment).

In the workplace setting, the employer is given wide discretion in setting the terms of employment with regard to employee behavior, dress, and some aspects of speech. Like civil disobedience, the overt flouting of contractual standards may be grounds for dismissal -- though it could be said that the employee has the "right" to violate them and accept the punishment for doing so. Of course, with "employment at will" contracts an employee can be fired for any reason at all, without either just cause or warning. [At-Will Employment, Wikipedia.org.]

Thus, when it comes to speech, citizens and employees are granted some rights to speak (without being punished) by the First Amendment (government); contracts and employee manuals (employment); forbidden some speech (for which they can be punished) by legislation or company policies; and left in limbo with regard to other speech (for which there are no standards).

As with most controls of human behavior, social norms rather than "the law" are the most common restraints.

However you may feel about the content of the players' "speech" (as distinguished from the time, place and manner of its expression), it's useful for them, the commentators, and the rest of us to remember that whatever "rights" the players may have, they do not come from the First Amendment of the U.S. Constitution.

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