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Why the NFL and ABC Are Free to Squelch the Free Speech of Football Players and Roseanne

by | Jul 9, 2018 | First Amendment, Media Law

Roseanne’s racist tweet. Kneeling football players.

These recent events have caused people on both the right and left to express concerns about freedom of speech and expression in the United States.

But these concerns are based on a misunderstanding. The truth is neither case invokes protections against denying free speech rights.

That’s because the U.S. Constitution’s guarantees limit the government, not private individuals or institutions. It is virtually impossible for the NFL or the ABC to violate the First Amendment, because they are not bound by it.

If the state of Florida, for instance, had criminally prosecuted Roseanne for her tweet, or if Congress passed a law requiring private citizens to stand during the national anthem, it would be a different story.

Standing for the Anthem

There are at two key court cases that make it clear that the government cannot force anyone to stand for the national anthem.

In 1943, the Supreme Court ruled that public schools cannot require students to pledge allegiance to the flag (West Virginia Board of Education v. Barnette).

The highest court in the land also upheld, in 1989, that it is unconstitutional to prohibit the desecration of the American flag (Texas vs. Johnson).

Justice William J. Brennan, Jr. wrote, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

A Racist Tweet

Similarly, there is ample proof that the government would not be able to punish Roseanne Barr for her tweet, despite how hateful and racially offensive it was.

For example, the Supreme Court upheld that the government cannot prohibit racist speech during a Ku Klux Klan meeting, forbid cross burning as an expression of racial hate, or punish homophobic expression in public discourse.

Are There Situations Where the Government Can Prohibit These Expressions?

Yes. If the government is employing an individual, that can change the situation.

For example, let’s say a public TV star was fired for a racist comment. Or a public university required its coaches to stand during the anthem.

The employment relationship changes the situation. In the case Pickering v. Board of Education, the Supreme Court held that public employees do not surrender their constitutional rights when they accept public employment; however, if their speech impedes their ability to effectively perform their jobs, or interferes with the employer’s operations, then the government can discipline the public employee.

So, it’s possible that the government could argue that the TV star or coach’s actions were interfering with their ability to do their job, and thus required disciplinary action.

The Reality for Roseanne and NFL Stars

It is worth repeating that, since neither of the actual cases involve the government, the First Amendment does not protect the TV star or the football players. So while you may be more offended by the speech in one situation than the other, both ABC and the NFL are private institutions, and they have the right to discipline their employees for political views.


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