The U.S. Constitution’s right to free speech, as codified in the First Amendment, protects American citizens against governmental limits on expression. It doesn’t affect the ability of private entities to control what employees say or do.
But that’s not the end of a constitutional analysis that could force the NFL to respect the rights of players to protest during the national anthem, at least in some stadiums.
As recently explained by Nikolas Bowie of Slate.com, some state constitutions apply more broadly, potentially preventing the NFL from prohibiting players from protesting during the anthem.
States like California, New Jersey, Pennsylvania, Colorado, Massachusetts, and Washington may have constitutional provisions broad enough to prevent the NFL from restricting anthem protests, which could directly impact home games of the Chargers, Rams, Raiders (for now), 49ers, Steelers, Eagles, Broncos, Patriots, and Seahawks.
Of course, any effort to secure the ability to protest most likely would require litigation. As the NFL Players Association decides how to deal with a new anthem policy that was adopted only two weeks ago (it feels like two years), one possible strategy will be to file suit in all states where the constitution may apply not only to public action but also to private action.
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