Legally Speaking: Can NFL Players Kneel During the Anthem? | We The Internet TV

September 12, 2019

How about we talk about the NFL
and the controversy over kneeling in protest during
the National Anthem? Do the players have a
First Amendment right to kneel
during the National Anthem? [BARRY] No, because
the NFL is a private organization, which isn’t bound by the
First Amendment rules. [LOU] Okay.
All right, that’s it! (music) [BARRY] I just think it’s an
unwise policy to prevent football players from taking a knee
to protest what they view as excessive police force against them. You know, the Supreme Court,
when the government has tried
to enforce patriotism norms by, for example—there was
a famous case where
Jehovah’s Witnesses’ children were made to salute the flag and
say the Pledge of Allegiance in class, and they sued and they said that that
violated their First Amendment rights, their freedom of belief,
their freedom of conscience to have to do something that
they disagreed with, like the NFL players are saying,
“it violates our conscience to have to stand to promote patriotism when we have this big issue
with what’s going on in our country.” And the Supreme Court originally
sided in favor of the government, saying that the Jehovah’s Witnesses’ children could be disciplined for failing to salute the flag. And this was in 1940, but what
happened in the wake of that decision, then, Jehovah’s Witnesses
became subject to a lot of
persecution by people. And the Supreme Court started
seeing this and rethinking their decision, and so in the famous case of
Barnette v. West Virginia school board, the Supreme Court reversed
itself and it said, “No, we think that compelling people
to say and do things that violate
their belief or their conscience, even in the service of patriotism,
to foster a spirit of patriotism,
violated the First Amendment.” And so even though the NFL isn’t
bound by the First Amendment, I think that they would
do well to heed those words, and to recognize that you
don’t promote patriotism by forcing people to engage
in patriotic acts where they’re not
fully on board with that. [LOU] As far as teams threatening
fines or suspensions to their players,
they’re totally able to do that, right? [BARRY] They’re totally able to do that, and as I understand this policy, it’s just making them stay
in the locker room. But they can be fined, I suppose,
if they disregard that. (music) [LOU] So President Trump tweeted
that NFL players should be suspended if they kneel during
the National Anthem. Should the President of the United States have any influence on the subject? I don’t necessarily remember
another president doing that, taking such an active approach
to something that’s happening
in a professional sport. [BARRY] Yeah, and I don’t either. And in fact, it gives some weight then to the argument that the NFL should be bound by the First Amendment, because the court has ruled
in other cases that if the government pressures a private actor into
committing a constitutional violation, like a free speech violation,
then the private actor is liable for the violation just like the
government would have been. And so I think here, there’s sort of
a decent argument that, given the bully pulpit that Trump
has used to basically cajole the NFL into adopting this policy,
could make the NFL a state actor, a government actor for the purposes
of this policy, so it could make them… at least it strengthens the argument
that they are violating the First Amendment when they prohibit players from taking the knee. [LOU] Yeah, it seems like the
president does this thing where he’s just, “I’m just talking!
What if this should happen,
what if this would happen to go down?” [BARRY] Yeah, so it’s indirect. And a lot of people say this really
has nothing to do with Trump,
it really has to do with money. And the NFL is afraid of losing
viewership for people that don’t like to see players
taking the knee, and there’s
probably a lot to that too. [LOU] Well, they definitely lost me. I don’t like to see
giant men holding hands. (music) [LOU] Hey guys, I hope you enjoyed our video. If you have any questions
about the First Amendment or free speech in general,
let us know in the comments. And be sure to subscribe to our channel, and make sure to click the little bell icon, so you get notified any time we release a new video.

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