Professors Disagree on Right to Protest during National Anthem

There’s actually some uncharacteristic diversity among law school professors on this question, as recounted on Campus Reform. Maybe it’s because, like the 17 percent of fans who stopped buying tickets just last week, they don’t watch football.

University of St. Thomas Law School professor Teresa Collett drew attention for her recent comments in Intellectual Takeout, where she pleaded with readers to “please stop saying football players have First Amendment rights to disregard the direction of their private employers while engaged in privately sponsored activities.”

“They have no more Constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any ‘rights’ they have are based on their contracts and employment law,” she added, responding to a claim from future Hall-of-Famer Tom Brady, who called the protests “part of our democracy.”

Vanderbilt University law school professor Suzanna Sherry said that the First Amendment “prohibits only the government from censoring peaceful protest or punishing people for it.” She added that team owners could “fire the athletes for the protests without violating the First Amendment.”

However, Harvard law professor Laurence Tribe said that the protests were protected under the First Amendment:

“In recent days, I have been explaining on Twitter and elsewhere why I believe players have a strong First Amendment claim under the landmark Supreme Court precedent of West Virginia Bd of Education v Barnette (1943), which held that no government official—a category that certainly includes the president—may pressure people to salute the American flag or follow any government-specified way of expressing their views about the pledge of allegiance or the national anthem,” Tribe told Campus Reform, arguing that “football players cannot be required to leave their free speech rights in the locker room.

“And it’s irrelevant that the NFL and the team owners are private entities not themselves subject to the First Amendment,” he concluded. “It’s the President of the United States who violates the First Amendment when he urges the NFL and the teams in the NFL to fire players who kneel as a sign of protest during the national anthem.”