National Anthem Kneeling Ban

National Anthem and State Action

The NFL recently passed a rule that prohibits players from kneeling, and instead requires standing, during the national anthem. Does this rule violate the First Amendment?

The NFL policy does affect freedom of speech because the act of kneeling in protest is a form of speech. It would appear NFL players’ right to free speech is being restricted. But is that unconstitutional?

The First Amendment prevents Congress from making any law abridging the freedom of speech, the freedom of the press, the right to peaceably assemble, or to petition for a governmental redress of grievances. Lawsuits alleging constitutional violations must show how the government, whether Congress or another port of government, was responsible for the violation of their rights.┬áThis is referred to as the state action requirement. It is impossible for private parties (citizens or corporations) to violate these amendments.┬áThe NFL is a private party. So, the NFL itself cannot and did not violate its players’ protected first amendment right to free speech.

Is it possible, though, that POTUS violated the NFL players’ first amendment right? To the extent that POTUS used his position as head of state to coerce and manipulate the NFL into implementing the policy, one could argue that constitutes state action. That would make the kneeling ban unconstitutional under certain circumstances. Importantly, it may expose POTUS to liability in his official capacity.