Trump Plays Ball (To Knee or Not To Knee)
President Trump likes to mix it up. Mix everything up, like the National Football League and the First Amendment.
Whether you think the President defies convention strategically or blunderingly, Trump is more a force of nature than a familiar political type, unabashedly tweeting on topics that are at least arguably Presidential (we will “totally destroy” North Korea) to just plain weird for a President to tweet about (Nordstrom has been unfair to his daughter), even assuming that a tweeting President is itself normal.
So what to make of his speech last week at a rally in Huntsville, Alabama, about the NFL? In case you were in cryogenic hibernation and missed it, President Trump attributed the NFL’s decrease in ratings to player protests and called for the firing of NFL players who call attention to racial injustice by kneeling during the national anthem. Not satisfied that just firing players engaged in social protest would be enough, President Trump also called for football fans to boycott NFL games unless the league fires or suspends players who refuse to stand for the national anthem. President Trump tweeted that players “must stop disrespecting our flag and country.”
Now back to the “force of nature” comment. It is possible that we’ve become so accustomed to the unaccustomed with President Trump that we miss what, at least from a Constitutional perspective, was happening there: the President, speaking as the President (in other words, a high-level mouthpiece of the federal government) was: 1) demanding that private employers fire employees on the basis of political expression; 2) urging citizens to boycott private businesses who do not fire employees who engage in political expression; and 3) undoubtedly impacting the professional viability for those employees who have chosen to engage in government-condemned political expression.
“Ok,” you might say, but (as we’ve heard ad nauseam), “this was just Trump being Trump,” which really means nothing, as if saying that an elected official was just acting out of whatever momentary impulses he had is all the analysis we need. So let us put the question to you more clearly: when the President, not purporting to speak as a private individual (even if he could do that), tells private employers to fire employees because he thinks they are unpatriotic; tells customers to damage the businesses that do not fire employees as demanded; and makes statements that may hurt the professional careers of the people he wants fired, do the private citizens and businesses have claims against the government?
Under the First Amendment, the government can’t ban speech except in very narrow circumstances. But that limitation only binds the government; for the most part, private employers could tell employees what not to say (or, at least, doing so doesn’t implicate a Constitutional right).
While the First Amendment prohibits the government from restricting private speech, the government’s own speech—at least when it expresses a certain viewpoint—is not restricted by the First Amendment. Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553 (2005). Known as the Government Speech Doctrine, the government does not infringe the free speech rights of individuals when the government declines to use viewpoint neutrality in its own speech. As long as the government is the speaker, the government is free to promote a particular viewpoint—a right freely exercised by President Trump. Boiled down, the doctrine simply means that the government is allowed to have an opinion.
Along with the ability to promote a particular viewpoint, the federal government is largely protected from suit under the doctrine of sovereign immunity. The Federal Tort Claims Act (“FTCA”) is a limited waiver on sovereign immunity and allows citizens to pursue some tort claims against the government. 28 U.S.C. § 1346(b)(1). However, the FTCA expressly excludes from its scope claims for most intentional torts including claims for “interference with contract rights.” 28 U.S.C. § 2680(h). Although “interference with contract rights” is not defined under the FTCA, federal courts have broadly interpreted the exclusion. Art Metal-USA, Inc. v. U.S., 753 F.2d 1151 (D.C. Cir. 1985). Therefore, claims that would arguably be applicable here, such as a claim for the tortious interference with business relations, would be barred under the FTCA.
But the President’s “government speech” doesn’t just express a “viewpoint,” arguably. The point of telling an employer to fire somebody if they continue to engage in a certain form of speech is to silence that speech—either because the player will be intimidated and stop, or because a fired player won't be “taking the knee” on nationally-televised sidelines any longer. That is, although players may not have employment claims against the government thanks to its sovereign immunity, they may well have claims that the government violated their First Amendment rights when it used its authority to attempt to silence their speech.
Terminated NFL players might also have recourse against their team. A player may be able to assert a claim for breach of contract depending upon the terms of their employment contract. A player could also file a charge of discrimination with the Equal Employment Opportunity Commission, a federal agency that enforces federal laws prohibiting employment discrimination. Why discrimination? Because of the obvious: the on-field protests are about race.
In the end, whether President Trump will succeed in getting players to stand up straight during the national anthem, or whether NFL franchises will do anything about the President’s threats, rely on a larger marketplace not only of speech, but of revenue. Like any other employer, teams will make an economic calculation: if the cost of flaunting President Trump outweighs the cost of silencing players, they will act like any other business and cave in. President Trump seems to believe that his aura and authority are enough to tank NFL revenues. He may well be wrong, though there is some indication that die-hard Trump supporters are, in fact, boycotting games. Leave it to Trump to pit something as American as apple pie—the national anthem before sporting events—against the NFL, which is, well, as American as apple pie.