State constitutions could force the NFL to allow protests in some stadiums

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The U.S. Constitution’s right to free speech, as codified in the First Amendment, protects American citizens against governmental limits on expression. It doesn’t affect the ability of private entities to control what employees say or do.

But that’s not the end of a constitutional analysis that could force the NFL to respect the rights of players to protest during the national anthem, at least in some stadiums.

As recently explained by Nikolas Bowie of Slate.com, some state constitutions apply more broadly, potentially preventing the NFL from prohibiting players from protesting during the anthem.

States like California, New Jersey, Pennsylvania, Colorado, Massachusetts, and Washington may have constitutional provisions broad enough to prevent the NFL from restricting anthem protests, which could directly impact home games of the Chargers, Rams, Raiders (for now), 49ers, Giants, Jets, Steelers, Eagles, Broncos, Patriots, and Seahawks.

Of course, any effort to secure the ability to protest most likely would require litigation. As the NFL Players Association decides how to deal with a new anthem policy that was adopted only two weeks ago (it feels like two years), one possible strategy will be to file suit in all states where the constitution may apply not only to public action but also to private action.

102 responses to “State constitutions could force the NFL to allow protests in some stadiums

  1. I would absolutely love it if players continue to protest (justifiably, see Brown, Sterling) and you know California for sure would back the players.

    But would they have to litigate in each state separately?

  2. I’ve never seen people so willing to kill their own profession just so they can do something that has the opposite effect of what they want. It’s insane.

  3. Not sure what to make of this, but If the Stadium is privately owned, and not a true public venue. (you can’t bring whatever you want into many stadiums, there are restrictions) I wonder how that would work out.

    And if you want an added twist what about stadiums that were financed with public assistance? No idea.

  4. The players can protest all they like but they can also buy their own ticket to enter the stadium to watch the game in person. Good luck with that.

  5. I thought the StarCaps case decided that NFL rules and collective bargaining superseded state law. More rules, laws, regulations, and lawyers. Too much for this college drop out. I give up.

  6. Very simple for me, just like last year. Any team that “takes a knee” I will refuse to watch. I’m open to this year and the players actually playing football, but one by one I will eliminate teams that don’t respect the flag. If they want to protest on their own time, great, no problem. Just don’t use one of my escapes as a way to bring your agenda in. Simple as that.

  7. Paragraph 2 of the “employment and services” section of the standars NFL player’s contract states the player agrees to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” The players may certainly win the right to demonstrate in the courts. But those same courts will probably tell them their teams have the right to discipline or fire them for hurting their ratings and brand with their demonstration. It’s a free country, but a deal’s a deal and everyone has rights ~ employers and employees alike.

  8. Go away please. When are we going to be a nation that accepts responsibility for our actions? Our interactions with authority, bosses, etc. Grow up. You have no liberties at work- sure you can exercise them but employers don’t have to keep you if you impact their bottom line. Time has already shown these protests to be meaningless and not well thought out. Play football on their time, protest on yours. Simple.

  9. Elliot is a choir boy compared to Foster. What charges to Elliot plead to? If he got 6 games, I would go nuts as a Cowboys fan if Foster didn’t get 10.

  10. We’ll see.. NFLPA been at the trough a long time, not sure they can stop biting the hand that’s made them fat. Next contract should be entertaining.

  11. If the players sure to kneel, I’m never watching another game no matter what. The NFL will be dead to me, keep disrespecting our nation and military, it’ll make for the end of your jobs.

  12. The point of the protest was made. Paying big bucks by Going to court to fry to keep protesting, instead of spending energy on helping fix the problem itself, seems a shame. Time to combat bad, over zealous, raciest cops and minority issues that have long kept them from having an even playing field.

  13. Or we could all leave this absolutely idiotic circus behind and focus on football and stop allowing morons on both sides to hijack our Sundays and the game love for political gain

  14. Why would anyone want to have the state get involved in this ridiculous mess? It is getting worse and worse for everyone involved. The fans make the league happen with their money. They are so oversaturated with this situation that it makes zero sense to even consider such an idea.
    The fans are waving the white flag of “enough already”! Play football!

  15. No state constitution gives employees the right to free speech at work. Can you imagine an employee at McDonalds protesting against eating meat, or an employee at a bar protesting against alcohol? This just comes down to the players thinking they are in a different category than the average person.

  16. I REALLY hope all the players just stay in the locker rooms until this nonsense goes away..

  17. The NFL’s “vote” on anthem protests, reminds me of the “voice votes” that took place in some congressional sessions and political conventions. There is really no way for anyone to verify whether a majority actually voted to approve what had been proposed Sometimes the voters booed the result because the opposing side actually sounded louder.

  18. I’ve been watching the NFL for decades and this situation has never come up. Now it’s an issue? I sure don’t get this.

  19. We are all tired of this BS. Please stop talking about it and MAYBE it will go away.

  20. Are you trying to tell me that teams cannot do anything about fans who run on the field to “protest” in the middle of games?

    The due process clause in the 5th amendment of the US constitution disagrees with the Slate author. Slate is wrong, the NFL can prohibit protests legally if they so choose.

  21. So when the CBA is renegotiated will the players fight for the right to protest or give in to the owners in exchange for a larger percent of revenue and more money? In the meantime the owners, players, and Prez mishandle the issue and ruin Sundays and Sunday dinner.

  22. I hope they have a mass protest against their Don Quixote windmills. I’d love to see the TV ratings drop another 10-15%. It will make it much easier to not even have a passing interest in the NFL is the inmates continue to hijack what used to be a few hours of leisure to get away from life’s annoyances and problems.

  23. That is an exceedingly superficial and, ultimately, faulty legal analysis. None of the cases cited involving restrictions on speech BY EMPLOYERS. The precedent in that area is consistent: private employees do not have constitutional rights (federal or state) that protect them from employer restrictions on speech.

  24. I thought everybody wanted to move on from the anthem protests. It was an effective way to draw attention to what seemed to be an ever increasing problem. But it has served its purpose.To most, it is an unacceptable form of protesting, and defeats the intent of it. The message becomes lost, and the protester becomes the target.

  25. The idea that state constitutions would prevent employers from compelling employees working during business hours is ridiculous. Since this has never come up before is evidence that no such rule exists.

  26. Ah, the objective an unbiased media, only reporting the facts and NEVER pushing an agenda. LOL!

    After all the negative flak the league and players took for anthem protests last season, pursuing this angle will do nothing except bring more of the same. Like it or not, the NFL is a business first, and anthem protests are bad for business. No one I know has the right to use their employer’s time and platform to promote their own pet political and SJW causes. I have yet to hear a coherent explanation as to why the NFL should be any different.

  27. So 13% of the population will have the right to protest at work while the rest of us must take up the slack.

    What, you thought that the law would be equally applied? Look around. You’ll see the law has already bent over backwards to accommodate the 13s. They can say what they want and keep their jobs.

  28. I will try to watch this season but it doesn’t seem like I’ll get very far. I don’t care about the protests strongly, I’m just sick and tired of hearing about it.

  29. When the stadiums are empty and they stop getting paid, I wonder if they will still want to protest?

  30. no need to litigate it. if numerous players kneel on a weekly basis, whether or not the league fines/penalizes them, it is news the league does not want.

    let’s face it, the only way the league is , thereby being something agreed to by both sides. The league would still take heat from some for caving, but it will eventually dissipate.

  31. I love when the media keeps pounding this drum. It all but sssures I am going to have more years of Trump’s economic policies. If it comes at the exsoense of NFL popularity and a bunch of people who judge their media credentials by Twitter followers – so be it. The rest I could not care about. That is why there is a mute button on most things.

  32. jackfromwinnipeg says:
    June 7, 2018 at 1:48 am
    I’ve been watching the NFL for decades and this situation has never come up. Now it’s an issue? I sure don’t get this.
    ——
    The reason this never came up is because in the past NFL teams stayed in the locker room during playing of the national anthem. The NFL made it mandatory early in Goodell’s reign that all teams be on the field during playing of the anthem.

  33. The law might allow protests at the stadium.

    But the EMPLOYER has a right whether or not to allow the EMPLOYEES to PROTEST on company time.

  34. “So that means my employer couldn’t keep me from saying Merry Christmas in California?”.

    Bingo! The people who are so pro-employer in prohibiting kneeling are the very same people who are up in arms about allegedly not being able to say Merry Christmas. The same people who loudly proclaimed an employee’s right to display a Bible on his/her desk.

    In other words, they are all for employer prohibitions, except when those prohibitions go against their political agenda.

  35. People won’t forget what the eagles tried to do to President Trump. They confirmed 80 reservations and then planned on sending two players and a mascot. Later, they tried to change the Presiden;t scheduled date for days later knowing he would be in Singapore. The eagles tried stiffing President Trump but now they are hiding in their closets.

  36. Actually the headline should read:
    “State constitutions could force the NFL to uphold the US Constitution”
    Welcome to Trump’s vision for America.

  37. Why not remove the singing of the national anthem at the games? The players are being paid to play football, not to bow to anyone’s idea of patriotism.

  38. Im pretty sure at this point they are only kneeling to,protest for the right, or at least permission, to kneel. Speaking for myself Ive gotten kind of numb to it all and am just going to be doing my usual pregame prep that involved neither standing for the anthem, reflecting on social isdues, nor watching any of the commercials the network tends to run at those times anyhow.

    Im sure if these guys put in some effort outside the game on their own time that would stand out and catch my notice more.

  39. Liberalsruineverything says:
    June 7, 2018 at 8:06 am
    We will see what happens when public funding for a new stadium comes up on a ballot in those states if they push that.

    ———————
    Or at a time a state is trying to convince a team to not relocate away, or a state trying to attract a team. Any state showing a willingness to impose itself on the team’s internal workings is not going to look attractive to said team. Nothing to do with the immediate topic of kneeling but just the willingness to impose. Because it sets a precedent and the team is then going to worry what else might get put on them.

  40. As soon as States force the NFL to allow protests for the anthem, the NFL will stop playing the anthem.

  41. None of this will make any of these teams any better at football….which should be their main focus. Instead you have individuals tying for their “look-at-me” moment. And let’s remember how this all started. It had nothing to do with police brutality. It was about Kaep’s inability to beat out Blaine Gabbert at QB.

  42. Who cares?
    Let’s just continue to watch the ratings fall. The NFL already Rues the day they got into the business of politics. This is just going to make them lose more money.

  43. I like when Captain Bonespurs weasles his way out of military service and then tells me what it mean to respect the country and be patriotic.

  44. cardinealsfan20 says:
    June 7, 2018 at 8:30 am

    “So that means my employer couldn’t keep me from saying Merry Christmas in California?”.

    Bingo! The people who are so pro-employer in prohibiting kneeling are the very same people who are up in arms about allegedly not being able to say Merry Christmas. The same people who loudly proclaimed an employee’s right to display a Bible on his/her desk.

    In other words, they are all for employer prohibitions, except when those prohibitions go against their political agenda

    This is the most intelligent thing I’ve heard from a Cardinals’ fan…

    EVER

  45. skoobyfl says:
    June 7, 2018 at 12:41 am

    If the players sure to kneel, I’m never watching another game no matter what. The NFL will be dead to me, keep disrespecting our nation and military, it’ll make for the end of your jobs

    You know who doesn’t disrespect our nation, military and laws?

    The guy who dodged the draft multiple times.

    The guy who called Vets who were captured and tortured “losers”.

    The guy who doesn’t know the words to God Bless America.

    The guy who says Russia and China should be treated better than Canada, UK, Japan and Germany.

    The guy who says our first responders are liars and on a witch hunt.

    The guy who hung out with Russian spies.

    The guy who passes legislation intended to personally enrich him and his.

    Keep watching the bouncing ball lemmings.

  46. the NFL needs to just have the anthem before either team takes the field. That’s how it was at first and for most of the life of the NFL.

  47. I love the NFL, but all this truly makes me want to say “screw it, I’m out”…

    Just stop! (And I mean the media) You’ve gone too far, at this point it’s like you’re kicking and screaming because you didn’t get your way and continuing to force the divisiveness is going to blow up in your face. Football got you here, no more politics.

  48. kingcrusher says:
    June 6, 2018 at 11:40 pm
    Very simple for me, just like last year. Any team that “takes a knee” I will refuse to watch. I’m open to this year and the players actually playing football, but one by one I will eliminate teams that don’t respect the flag. If they want to protest on their own time, great, no problem. Just don’t use one of my escapes as a way to bring your agenda in. Simple as that.

    Bye!

  49. Ironic that the states with greater protection for free speech, have more taxes and regulations than the average state.

  50. Why don’t the players protest the police depts that have the incidents? Two guesses, police unions and quite a few are led by minorities.

  51. Don’t just shut up and play football, your voices are much more important than that, especially with your platform. Continue to fight like true Patriots and keep pushing until your voices are heard. So proud of players like Malcolm Jenkins. Gives me a sense of pride that these guys care about the future of this country and how African Americans are treated.

  52. This country has been divided since it’s inception: slavery, segregation, Reagan’s war on drugs and his impact on it, the crime bill from Bill Clinton. If anything the players are trying to unify an already broken country. This isn’t about red or blue politics, this is about basic human rights.

  53. The author has a valid point IF you apply the league’s policy to the FANS. They would not be authorized to limit fans ability to kneel or whatever by removing them from the event absent some sort of agreement with the ticket purchase(current case pending on similar free speech claim). No state’s constitution has a provision that allows employees to say or do anything they want against their employer’s wishes while on the clock. The players are direct visible representations of the team, owner and league while at the league event and especially while in uniform. The state constitution argument is a leap spawned from the Packers FAN suing the Bears for not letting him wear Packers gear to a Bears special event held at the stadium. (He purchased Bears season tickets also)

  54. youngnoizecom says:
    June 7, 2018 at 10:58 am
    This country has been divided since it’s inception: slavery, segregation, Reagan’s war on drugs and his impact on it, the crime bill from Bill Clinton. If anything the players are trying to unify an already broken country. This isn’t about red or blue politics, this is about basic human rights.

    —————-

    Sadly too many are trying to change the narrative.

  55. jpoh333 says:
    “..No state constitution gives employees the right to free speech at work…”

    That’s funny, because when Kentucky clerk Kim Davis protested at work, she also denied people their Constitutional rights in the process, and as I recall, conservatives cheered when she did it.

  56. These players and the NFLPA must really want pay cuts and less viewers.. I’ve never seen anything like it.

  57. kingcrusher says:
    June 6, 2018 at 11:40 pm
    Very simple for me, just like last year. Any team that “takes a knee” I will refuse to watch. I’m open to this year and the players actually playing football, but one by one I will eliminate teams that don’t respect the flag. If they want to protest on their own time, great, no problem. Just don’t use one of my escapes as a way to bring your agenda in. Simple as that.

    Just don’t use one of my escapes as a way to bring your agenda in.

    ****

    me me me.

  58. the NFL needs to just have the anthem before either team takes the field. That’s how it was at first and for most of the life of the NFL.
    ————————–
    Please someone explain it to me: Why do we need a National anthem played before, during or after a fricking sport game? At all! Please don’t just thumb down, say where I’m wrong. What is so patriotic about the NFL, MLB, NHL or a high school game?

  59. @smarterthanyouoryours:

    Your point by point post makes way too much sense.

    Everything is 1,000% true.

    Yet, the lemmings still swallow the bait.

    Fools.

  60. I’ve already cut back on my football watching – and with my divorce from my Redskins after being a fan for 40 plus years, there will be no football this season at all.

    I’m over the players insulting our country over their bogus, leftist rants about race and equality.

    I hope the NFL fails and then the Krappernicks of this world can get the only job for which they are qualified – slinging french fries.

  61. BuckyBadger says:
    June 7, 2018 at 11:29 am
    youngnoizecom says:
    June 7, 2018 at 10:58 am
    This country has been divided since it’s inception: slavery, segregation, Reagan’s war on drugs and his impact on it, the crime bill from Bill Clinton. If anything the players are trying to unify an already broken country. This isn’t about red or blue politics, this is about basic human rights.

    —————-

    Sadly too many are trying to change the narrative.
    ~~~~~~~~~~~~~~~~
    That “narrative” was changed by the players themselves. Millions of fans told them they were offended by the display DURING the anthem. The players’ response was basically “so what”. The players could have moved their kneeling demonstration to literally ANY time during any day of the week. By insisting on doing it ONLY DURING the anthem the players made it divisive and about intentional disrespect. People can do some mental gymnastics while trying to present it as anything other than what it obviously is but that does not change the facts that objective people can plainly see. It is a losing battle but the only ones who cannot see that are the political zealots and race baiters trying to keep the controversy alive for their own agenda.

  62. The players aren’t supposed to care if you’re offended. That’s not their job. There’s a huge legion of fans who support what they’re trying to do.

  63. No one will forcibly attempt to keep anyone from kneeling in any stadium before any game.

    The only question is “can an employee of a private corporation be fined/punished for disobeying a direct requirement from their employer”.

    The question isn’t whether or not they have the right to disobey, it is whether or not their employer has the right to punish them for disobeying.

  64. youngnoizecom says:
    June 7, 2018 at 12:08 pm
    If players protested the police departments in which these kinds of incidents took place, they’d be protesting every department in the country.
    ———————-
    Every department?! Simply not true. But the bias is not lost.

  65. youngnoizecom says:
    June 7, 2018 at 12:08 pm
    If players protested the police departments in which these kinds of incidents took place, they’d be protesting every department in the country.
    ——————————
    You brainwashed fool. Keep watching your television ‘PROGRAMMING’. lol Pathetic that they continue letting you post 20 times on one article.

  66. youngnoizecom says:

    June 7, 2018 at 1:00 pm

    The players aren’t supposed to care if you’re offended. That’s not their job. There’s a huge legion of fans who support what they’re trying to do.
    ———————-
    They’ll care when fans don’t show and they get substantial pay cuts!!! I CAN’T WAIT!

  67. Shoot, if one legion of fans doesn’t show up then another will. Television programming didn’t tell me that, I’m black and I live in America, and pretty much every black person in America can tell you about an instance in which they’ve been harassed by an officer without any reason.

  68. well do something just to upset Trump, and all the trumpsters. Then they can light their torches, and put on their robes and watch Nascar.

  69. youngnoizecom says:
    June 7, 2018 at 2:44 pm
    Shoot, if one legion of fans doesn’t show up then another will. Television programming didn’t tell me that, I’m black and I live in America, and pretty much every black person in America can tell you about an instance in which they’ve been harassed by an officer without any reason.
    ~~~~~~~~~~~~~~
    Pretty much a whole bunch of them would be lying to hide their own accountability. Surely, some are telling the truth but how many times have you heard someone claim to be pulled over for only “DWB” and then find out they were speeding, had expired tags, no seatbelt, failed to signal, ran a stop sign/light, weaving, DUI, etc.? Those people were all lying but people still agreed with them and promoted their victimization. Just stop it.

  70. Kinda makes the people who deemed the protesters and their supporters “unpatriotic” look like hypocrites, or at least ignorant to what patriotism truly means.

  71. Perhaps the NFL’s tax-exempt status comes with losing some benefits enjoyed by companies that pay taxes.

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