Professor Kimberly Wehle spoke on NPR’s Morning Edition program today (Oct. 25, 2017) as part of a segment titled “Your Questions About Activism In Sports, Answered.”
Wehle responded to a listener who asked if NFL players could be compelled to stand for the national anthem before a game.
Her response: The NFL, like other private employers, can legally ban employees from exercising free-speech rights while they are at work, as long as a government entity isn’t involved in the ban.
“When it comes to the First Amendment, which is the part of the Constitution that I think most people think about when you’re talking about free speech, we do cede rights when it comes to employment,” Wehle said. “So the First Amendment actually only binds government behavior” – or the behavior of government officials.
NFL teams, like other companies, can require workers to sign a contract that in effect waives their free-speech rights – and there things become murky:
“[T]he first question would be, In the collective-bargaining agreement that binds these players’ terms of employment with these football teams, does it essentially waive the other federal labor law protections? … [M]y understanding is that it’s pretty vague and that it’s not clear one way or the other.”
Wehle, a former federal prosecutor, is the author of The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy, which is forthcoming from Cambridge University Press.