As the NFL braces for the NFL Players Association’s potential legal challenge(s) to the new anthem policy, the league should be concerned, at least a little bit, about the possibility of a lawsuit based on the First Amendment.
What’s that, you say? The First Amendment doesn’t apply to private employers? It generally doesn’t. But when private employers put their employees to work in a publicly-funded venue, the analysis possibly changes.
As explained by Andy Grimm of the Chicago Sun-Times, a 2017 lawsuit filed by a Packers fan who had purchased Bears season tickets could potentially open the door for a First Amendment-based attack on the anthem policy.
Russell Beckham argues that the Bears violated his First Amendment rights by preventing him from walking the sidelines while wearing Packers colors during a pregame event for season-ticket holders in 2016. Beckham, who represents himself in the lawsuit, has survived a preliminary effort by the Bears to have the case thrown out of court.
To ultimately win, Beckham may need to show that the Chicago Park District, which owns and operates Soldier Field, had a role in the team’s decision to prevent Beckham from wearing Packers gear on the sidelines. Which means that NFL players may need to show that local stadium authorities had a role in the rule that requires players to stand for the anthem.
Or maybe not. In Grimm’s article, one legal expert compares the situation to hosting a private birthday party in a public park. NFL games represent a private business endeavor that plays out in a public arena that anyone who pays the appropriate fee may attend. A plausible argument could be made that the close relationship between NFL teams and the publicly-owned stadiums transforms everything about the situation into a public event.
Ultimately, an anthem-based fight would play out in every publicly-funded stadium, with careful inspection of the leases needed to determine whether there may be any plausible basis for arguing that private employers cannot infringe upon First Amendment rights in an inherently public setting. Beckham’s existing lawsuit, if the NFLPA were to join it, could provide the test case.
And Beckham seems to be interested in partnering up with the NFLPA.
“[If] they let me wear my Packer stuff on the field, it’s over and done with, that’s what I always said,” Beckman told Grimm. “Now, I think if I was approached by the [NFL Players Association] or one of the players who kneel, I would go ahead with the case.”
At a time when the NFLPA is contemplating which case(s) to go ahead with as it relates to the league’s decision to unilaterally eliminate a right to protest that the league previously had given to the players and confirmed on multiple occasions, maybe the first battle will come within the confines of Beckham’s existing lawsuit.