The NFL Is Within Its Rights and Right

The NFL owners were not only within their rights but right to prohibit protests during the national anthem. This controversy is not about the right of free speech, because the decision is that of a private organization about how to run its business. The First Amendment applies only to state action.

Nevertheless, David French, a thoughtful writer for National Review, believes that the NFL is wrong because its decision contributes to a culture of intolerance for unpopular views that conservatives rightly decry on college campuses. But not every place is equally appropriate for political debate. A football game is a sporting event, not a forum for discussion of the issues of the day. And the playing of the anthem is a grace note to begin the game with a civic solidarity that protests mar.

Would French believe that the Catholic Church should permit congregants unhappy with the Church’s response to pedophiles within the ranks of the clergy to turn their backs at communion? Or should stores allow people to use their premises to protest for a fifteen dollars an hour minimum wage?

There are plenty of places to debate Black Lives Matter or the myriad other issues which a player might want to raise. Refusing to stand for the anthem does not offer any idea that might advance reasoned discussion. And it is hardly an insult to football players to say that they have no particular expertise to contribute on social issues. By making themselves into a spectacle, they are simply trading on their celebrity — free riders in the world of ideas whose opinions would command no attention for their intrinsic power or eloquence.

These kinds of considerations are emphatically not relevant to the scope of free speech when government is involved. We are rightly concerned about the government determining the nature of public reason or the best messengers for stimulating productive discussion, but these are very relevant considerations in deciding what are the best private forums for debate.

The contrast with universities is obvious. These places hold themselves out as places for debate. Even here, there would be nothing wrong with a private institution, say a religious one, putting some ideas off limits — so long as it made those limits clear. What is most objectionable about our mainstream universities is their hypocrisy: they claim to make a trial of all orthodoxies, but often enforce orthodoxies themselves.

French also analogizes the NFL ‘s decision to Mozilla’s firing of Brendan Eich for donating in opposition to same-sex marriage. But these are not remotely equivalent. Eich was fired for opinions expressed outside the workplace. The NFL is not trying to fine, let alone fire, players for views expressed on their own time. Again this distinction might be irrelevant if the employer were the government, but it makes a great deal of difference to proper social norms. The vast majority of employers do not fire people for the political opinions offered off the job, even as they appropriately refuse to tolerate political protests at company events, like the unveiling of a new product.

Progressives want to politicize all spheres of social life. Conservatives should resist, not second, their efforts. A healthy society maintains both places for a debate and places for the many other human enterprises that make life worth living.

Reader Discussion

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on May 29, 2018 at 08:51:14 am

Well said, Professor McGinnis!

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Image of Mark Pulliam
Mark Pulliam
on May 29, 2018 at 11:50:15 am

The NFL could have avoided a whole lot of trouble if they had just been decisive and done this a year ago. Roger Goodell's handling of this controversy could not have been worse, contributing heavily to the continuing decline of NFL ratings (despite all their yammering about "cord cutting", etc. being the cause). For this he was rewarded with a huge contract extension. Go figure!

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Richard Werther
on May 29, 2018 at 15:38:59 pm

I agree w/ McGinnis: Private firm, private actions.

But if I wanted to make the case, I’d observe that the NFL receives a LOT of government subsidies—especially in the form of an exemption from antitrust laws. It could be argued that the NFL is seeking to control speech using government-provided resources, thus it’s really government’s speech-control. After all, the Trump Administration wants to use the fact that Planned Parenthood gets Title X funds as a basis to control whether Planned Parenthood can provide abortion; by the same token, government could state that the provision of an antitrust exemption gives the government control over the NFL’s speech policies.

But the same argument would apply in reverse: If the NFL had FAILED to condemn the kneeling, that ALSO could be construed as government influencing speech. So, without greater context, the argument is indeterminate.

Eich was fired for opinions expressed outside the workplace.

Could someone provide a citation for the proposition that Eich was fired? I’d heard that he resigned after receiving a lot of pressure, but not pressure from his employer specifically.

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Image of nobody.really
on May 29, 2018 at 19:19:37 pm

French uses his essay to continue a never ending diatribe against The Trumpster. Get over it, Davie Boy.

BTW: What every one seems to miss is this:

It is not the NFL policy that is causing diviseness; it is the players who insist on destroying the collegial atmosphere of a football game by injecting politics into the "festivities" (and I assure you, they are festivities).
Where else can 65-100K people of all backgrounds, incomes, politics get together / join together in a common pursuit with a common hope and objective?

There may be no cryin' in baseball, Tommy Hanks; there sure as hell should not be politics in football.

BTW: Nobody may be correct. Eich resigned - he was not fired. It is an open question whether a demonstration of support by Mozilla Chairwoman Mitchell Baker would have enable Eich AND Mozilla to withstand the firestorm of denunciation. Who knows.
What is clear, however, is that numerous citizens in California were subjected to harassment by the SSM supporters once it was determined that heretofore private information would be made available to the multitude of "hecklers" in the land of Fruit and Nuts!

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gargamel rules smurfs

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.