By: Robert Sarwark

Taking a Knee

On Wednesday, May 23, the National Football League released the following policy statement:

The 32 member clubs of the National Football League have reaffirmed their strong commitment to work alongside our players to strengthen our communities and advance social justice.  The unique platform that we have created is unprecedented in its scope, and will provide extraordinary resources in support of programs to promote positive social change in our communities.

The membership also strongly believes that:

1. All team and league personnel on the field shall stand and show respect for the flag and the Anthem.
2. The Game Operations Manual will be revised to remove the requirement that all players be on the field for the Anthem.
3. Personnel who choose not to stand for the Anthem may stay in the locker room or in a similar location off the field until after the Anthem has been performed.
4. A club will be fined by the League if its personnel are on the field and do not stand and show respect for the flag and the Anthem.
5. Each club may develop its own work rules, consistent with the above principles, regarding its personnel who do not stand and show respect for the flag and the Anthem.
6. The Commissioner will impose appropriate discipline on league personnel who do not stand and show respect for the flag and the Anthem.​

This change came, ostensibly, in direct response to many players’ practice of kneeling during the National Anthem. Though viewed by some (including President Trump) as disrespectful and anti-American, the participating players and their supporters have attested that it is a form of respectful, peaceful protest against police brutality and other forms of systemic oppression and/or racism. Most prominently in the media, former San Francisco 49ers quarterback Colin Kaepernick — who remains unsigned by any team in the NFL — had led this movement during the 2016-2017 season, often in tandem with Black Lives Matter initiatives.

Many have since asked: Is this new policy a violation of NFL players’ First Amendment rights to free speech?

 

Making a Scene

In other news, on Tuesday, May 29, actress/comedian Roseanne Barr’s eponymous sit-com reboot was swiftly cancelled by its network, ABC. Only hours before, she had tweeted the following in reference to Valerie Jarrett, a former adviser to President Barack Obama:

muslim brotherhood & planet of the apes had a baby=vj

Though she quickly deleted the tweet and apologized, screenshots of the statement spread quickly and outrage ensued, including among many of Roseanne’s own fellow cast members. (Incidentally, this is not the first time Roseanne has compared black women to apes.) She was also promptly dropped from her talent agency.

So is this a violation of Roseanne’s First Amendment rights to free speech?

 

Free…to Find Another Job

In response to both of the above questions: No.

The First Amendment to the United States Constitution, as most Americans learn early on in their educations, guarantees that citizens’ freedom of speech should not be “abridged.” However, as many who have posted controversial or problematic social-media posts and then been fired know all too well — Roseanne Barr now among them — this freedom does not entail freedom from professional or social consequences. In a free-market, capitalist system such as the United States, the government cannot abridge free speech, but a private company (or even a public agency) can expect its employees to follow certain rules and regulations regarding behavior and decorum. In fact, this is what we sign onto when we are hired and contracted to any new job.

As for the erstwhile NFL #TakeAKnee protesters, the same limitation applies, though in this case through a new specific policy. And, as the first NFL player to kneel as a form of protest, Colin Kaepernick is paying the price for his activism; he was not fired, but has been deemed enough of a liability by team owners to not be hired by any other team in the league.

Employers, like the NFL and ABC (a subsidiary of Disney), are required by federal law to follow anti-discrimination regulations as detailed by the Equal Employment Opportunity Commission. These regulations are determined along the lines of personal identity, such as race, gender, sexual orientation and national origin. But as long as none of these protections has been abridged, employers are within their rights to dismiss employees for breaches of internal ethics regulations.

Usually enumerated in legalese within employment contracts and/or employee manuals, these include such terms as not causing undue external scrutiny from problematic public statements or behavior, or those otherwise contrary to the employer’s values and/or intended image. When she made the decision to cancel Roseanne, ABC Entertainment President Channing Dungey had every right to do so under such a clause, just as Roseanne herself now has the right to tweet or post or scream to her heart’s content on any topic she so chooses.

 

Oh Say Can You See?

The above two cases have been intensely polarizing, with many on the right viewing Roseanne’s cancellation and firing as unfair and extreme — just as many on the left find Kaepernick’s current state of unemployment.

There’s just one more detail to keep in mind. On the evening of July 26, 1990 Roseanne Barr infamously performed “The Star-Spangled Banner” before a San Diego Padres (Major League Baseball) game. Though one might forgive her for not being a particularly skilled singer, whether grabbing her crotch and spitting on the ground immediately afterwards is “respectful” is open to interpretation. At the very least, the president of the United States at the time, George H.W. Bush, didn’t think so.

New York Times opinion writer Russell Baker pondered soon after the incident, “[W]hy must all professional sports events open with the national anthem? Doesn’t this debase the anthem by using it to create a false notion that the big-money people governing sports are engaged in patriotic endeavor?”

Though it’s clearly tongue in cheek, this perhaps may be the most pertinent question to ask here.

 

---

Robert M. Sarwark is a librarian at the Art Institute of Atlanta and a 2018-2019 Visiting Fellow in Publishing History at Harvard University’s Houghton Library. He is originally from Chicago and enjoys dogs, pizza, and writing bios in the third person. Find him on Twitter @RobSarwark.