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No freedom is absolute. The NFL players are about to find that out

October 24, 2017

The Second Amendment gives you the right to own a gun. But it doesn't give you the right to shoot it in your workplace.

The Fifth Amendment gives you the right to refuse to answer a question in a legal or judicial setting on the grounds it might incriminate you. It doesn't give you the right to refuse to answer your boss's question about your work.

It therefore follows that Americans have a free-speech right to criticize the government and public officials. But they don't necessarily have a constitutional right to say whatever they wish in the workplace.

For example, the McDonald's management might not be thrilled if their counter staff began telling the customers that the governor is a crook or that the president is a moron.

So we turn to the issue of the day, which is professional football players taking a knee during the national anthem. Then-San Francisco quarterback Colin Kaepernick began this last season when he took a knee and said he was protesting white police officers shooting unarmed black men.

Making a statement about white police shooting black people is undoubtedly a worthy discussion to have. One such is one too many. But the question here is the venue of the protest. The second question is Kaepernick's employment. He doesn't have a job.

No NFL team will sign him even though he took the San Francisco 49ers to the Super Bowl a few years ago. At least back then, he was a starting quarterback.

Like him or hate him, President Trump fired up this issue the other week when he called for NFL players who don't stand for the national anthem to be fired. This united some, perhaps most, of the players behind the protests. But now, after initially standing with the players, the owners may be turning a different direction.

Which prompts this rumination about First Amendment rights. To refresh, these are the rights of freedom of speech, of the press, of religion and of peaceful assembly.

Speech. The NFL players are citing freedom of speech. However, a modest group of constitutional scholars is pointing out that freedom of speech has to do with speech against the government.

That means you are free to say anything you wish in the public sphere, but not necessarily anywhere else. The NFL is a private enterprise. It is not the government. If the owners wished to punish the players for being unpatriotic, they could. Now Dallas Cowboys owner Jerry Jones has said that if any of his players take a knee, they won't play.

Assembly. This one is prompted by the situations in Charlottesville, Va., and Berkeley in recent weeks. There, demonstrators on the right and the left (please forgive us for referring to Nazis and white supremacists as "the right" and anarchists as "the left") held demonstrations. Near riots occurred in both places, with one woman killed in Virginia.

In this case, the neo-Nazis/white supremacists/Ku Klux Klan had a permit to demonstrate. The antifa, as they call themselves, who are really anarchists, counter-demonstrated. Say what you want about the white supremacists, et al. They at least complied with the spirit of the First Amendment. That was to peaceably assembly via a permit.

Americans have a constitutional right to peaceably assemble, but it doesn't mean just anywhere, anytime. The idea back in 1787 was to hire a hall and hold a rally.

Religion. Another one that is misunderstood. Frequently, we hear the phrase about a "great wall of separation between church and state."

That isn't what the First Amendment says. What the First Amendment really says is that Congress may not establish a state religion of the type found in most European countries in the 18th century. Church of England in England, for example. Catholic Church in Spain and France. Lutherans in Scandinavian countries.

However, there is no great wall mentioned. That phraseology comes from a letter then-President Thomas Jefferson wrote to a Baptist group in Connecticut in 1801. Jefferson is entitled to his opinion, of course. But he was not at the Constitutional Convention, since he was U.S. ambassador to France at the time. In no way is he a constitutional authority in the way Alexander Hamilton or James Madison were, they being the main authors of the Federalist Papers.

And finally, the Press. Based on the First Amendment and various U.S. Supreme Court decisions, press freedom is the most unrestricted of these four. True, there are libel and slander laws.

But even the publication of classified information is protected from both being enjoined and then punished. So both the governor and the president may not like what is written here, but they have to put up with it.

No freedom is absolute. The NFL players are about to find that out.

Reid Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach.

 

  • Accomplished writers appear in the Politics column every Tuesday on a rotating basis to explore the dynamic world of politics at the local, county, state, national and world levels.

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