by: Jeremy Leahy
In recent weeks we have once again wrapped ourselves in the most precious of our civil liberties. Our right to free speech. Speech can cause upset, laughter, crying disagreement and stir our emotions. The one thing the First Amendment does not do and that is solely and completely protect us.
The Constitution protects us in many places in life; however the Constitution is not omnipresent.
In 1791 when the Bill Of Rights were adopted the the framers made it very clear in the First Amendment that " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."
Let's be clear that the courts have established guidelines for speech that is never protected. Examples are threats of harm, defamation, incitement or the infamous "fighting words."[ Words by their mere utterance that are likely to result in an immediate and substantial breach of the peace.]
Oliver Wendell Holmes famously stated that your right to free speech does not protect your right to go in to a crowded theatre and falsely yell fire.
Free speech is broadly protected and narrowly restricted. That being said -one who is employed by the NFL or any other private entity does NOT have Constitutional rights while in the workplace. When on the field a professional athlete is at work and do NOT enjoy Constitutional protections. The NFL has a right to establish a policy requiring them to stand during the National Anthem. When they kneel they are expressing something- but that expression is not protected by law.
When it comes to Constitutional protections we have to look at it from two separate actions. 1.)A public action 2.) A private action.
A First Amendment violation requires a public action not a private action. In order for a First Amendment violation to occur the government needs to be the agent of interference. Not a private employer. The First Amendment states: Congress shall make no law. It doesn't state: An employer shall make no policy. Try going to your office one day with profanity on a t-shirt and see what happens. The employer doesn't have to fire you , but they sure can. The employer is not required by law to show you the door but at the same time they are not required by law to retain you.
For the most part our Constitutional rights do not exist in private parlance. If a parent suspects that their 18 year old has drugs in their bedroom the parent can search the bedroom without a search warrant. The parent is the controlling agent.That is a private action. Now, if the police show up and want to search the bedroom for drugs they would need a search warrant. When the police show up at the home the Constitution is on the doorstep.
In most states an employer can even fire you when your exercise your right to free speech outside the workplace .If you say or express something the employer doesn't like or feels that it runs against the company's mission or values they can wish you happy travels. You have no grounds for a lawsuit. The NFL can fire you ,fine you or suspend you for not standing during the National Anthem. It's a simple fact. Ask Kathy Griffin. CNN gave her the boot after her summer stunt. Ask SNL writer Katie Rich who went on twitter and called Barron Trump the country's first homeschool shooter. Bye Bye!!
Generally speaking you can't be arrested for expressing something offensive;however you can still suffer from it. Yet, your not a victim of a Constitutional violation.The First Amendment can never protect you from the consequences of your actions.
Understandably, this has stirred up a lot of emotions about what the National Anthem represents. The conversation and debate surrounding it has found its way to the water cooler, the dinner table and elsewhere. That being said we all need understand there are morals and ethics surrounding this debate, but the law is totally separate.
Once again, to quote Oliver Wendell Holmes. " You have a Constitutional right to free speech. You do not have a Constitutional right to a job."
Jeremy Leahy, Natick, MA
Jeremy Leahy is a show host on Talk America Radio. His show Standing Ground can be heard on the LIBERTY channel on Sundays at 9a ET, and on the JUSTICE channel on Wednesdays at 6p ET and Fridays at 12a ET.