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Saturday, August 11, 2018

Now returning: NFL games, player protests, and presidential tweets

As if on cue, Thursday's NFL preseason games included several players kneeling, standing with a raised fist, or remaining in the locker room during the national anthem. The President responded on Friday with a tweet 1) criticizing the players for being unable to define what they are outraged about, 2) urging them"be happy, be cool" because they make millions doing what they love, 3) urging them to find another way to protest, and 4) commanding "stand proudly or be suspended without pay." (capitalization, etc., corrected).

The first point is untrue because the small handful of players who protest have been very clear and explicit that they are protesting police violence and the criminal-justice system. As this piece points out, the President recognized that in a June statement asking players to talk to him about people they believe were treated unfairly by the criminal justice system so he could pardon them. I derided that statement as incoherent; I should have added not serious.

The second point skates close to the line of saying that rich people should not be allowed to complain. This is ironic coming from a rich man who ascended to the presidency by complaining. So what is it about these wealthy people that should cause them to lose the right to complain? I cannot put my finger on it.

The fourth point brings us back to that state action argument: When a public official continually talks about a specific private dispute and urges a private actor to take some action, do we get to some point where that encouragement becomes overwhelming or coercive? Is it a question of quantity and specificity--how often and how specific? Does it change when it is the President doing the urging? (By the way, hat tip to Rishi Batra (Texas Tech) for suggesting that specificity might matter during our SEALS discussion).

The third point is interesting and touches on something we discussed in the Thursday panel. During pregame warm-ups on Thursday, several Eagles players  wore t-shirts displaying various statistics about people of color and children in prison, one of the issues about which players have been protesting. Throughout this protest debacle, the NFL has been compared unfavorably with the NBA in terms of support for player protests, although the NBA has and enforces a rule requiring players to be on the court and standing at attention during the anthem. So why is the NBA not criticized, by the press or its players, for doing what the NFL is trying to do? Some of it is the perception of incompetence of NFL Commissioner Roger Goodell and the expressly plantation mentality of some owners.

But one possible reason (H/T to dre cummings of Arkansas-Little Rock for this point) is that NBA players have worn message t-shirts and otherwise expressed themselves during their highly visible pre-game warm-ups.* NBA players have an at-the-game, high-profile, many-people-watching forum to express their political messages, therefore less need to use the anthem as a protest vehicle. NFL warm-ups are not watched in the same way and not as intimate, and players have not tried to take extensive advantage of the alternative forum. Perhaps if they do and can, it will remove pressure on the anthem as a necessary expressive moment.**

[*] Prominent examples include LeBron James and others wearing t-shirts reading "I Can't Breathe." WNBA players have made extensive use of this forum.

[**] Or, the NFL being what it is, the league will shoot itself in the foot by issuing a diktat about players having to wear team gear during all on-field warm-ups.

Posted by Howard Wasserman on August 11, 2018 at 07:52 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Probably. Although I learned a few weeks ago that prior to 2009, the players remained in the locker room during the anthem. The obvious solution is to say "we are returning to pre-2009 practice." Unfortunately, I think the league has allowed itself to be painted into a corner, so it cannot get away with that move, even if framed in neutral-sounding terms.

Posted by: Howard Wasserman | Aug 11, 2018 8:07:04 PM

The real issue is what is the NFL, the employer, going to do. They came out with a policy but backed off. I guess they were hoping the problem would go away but it won't. They only really have two choices, allow the protests or not. Good luck with either.

Posted by: sam tenenbaum | Aug 11, 2018 8:03:19 PM

Interesting , but he has a certain point ( number : 2 ) although should be elaborated further , more coherently and explicitly . It is not that rich people should not be allowed to complain , that is really irrelevant . The issue , is rather that one :

The fame , the money , the glory , the status , becoming national or global icon ( as such players are indeed ) is all thanks to the public as a whole ( emphasizing as a whole ) . The football is a national sport . The anthem is national one . Such player can of course protest . But , must respect the public as a whole ( among others , because they have made him ) . Must separate politics from sport . Because the latter , meant for it . Meant to be or to function as a bridge between groups , nationals , races , political stances and so forth ...... . So , he should find another arena for protesting . Not through sport or national anthem . Because , surly it does hurt the feelings of other groups by that . While , he must respect ( not legally must of course ) the public as a whole , for we deal here with :

National anthem , and National sport . And the public as a whole ,that made him . He should respect it , and feel gratitude for it .

Let me just quote Paul Mccartney before his very controversial show in Israel ( had gotten even threats not to show there ) here :

" I play to all people, and I play to people not governments, and I believe strongly that all people are peaceful and would want peace. So that’s the thing. I don’t worry about that [danger], I know what my motives are, and I think that a lot of people understand that my motives are peaceful ones."

here :




Posted by: El roam | Aug 11, 2018 11:24:08 AM

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