“We want people to be respectful of the national anthem.”
— Roger Goodell, NFL commissioner
“NFL players have shown their patriotism through their social activism, their community service, in support of our military and law enforcement, and yes, through their protests to raise awareness about the issues they care about.”
— NFL Players’ Association
On Wednesday of this week, the National Football League announced a new policy that will permit players to remain in the locker room during the playing of the national anthem, but will require all personnel to stand if they are on the field when the anthem is played, or else face a fine from the league. The internet immediately erupted — in support and opposition — highlighting the issues that surround freedom of speech and religion in the workplace.
Federal courts have rarely considered cases about “The Star-Spangled Banner.” But they have, on several occasions, weighed in on another patriotic observance — the Pledge of Allegiance. The Pledge has been challenged far more often because it is recited by school children daily in public schools, and those public schools, being a branch of the government, are covered by the provisions of the First Amendment.
In 1940, with war raging in Europe, the United States Supreme Court first heard a complaint from a Jehovah’s Witness that the mandatory recitation of the Pledge violated their freedom of religion. Justice Frankfurter wrote the decision for an 8-1 court, concluding that the Pledge was patriotic, not religious. He said, “conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”
His decision would stand for a mere three years. In the 1943 term, the court took up the issue again. This time, however, the claim was not based on religion, but rather on a violation of freedom of speech. That is, the plaintiffs said that under the First Amendment, the government should not be able to compel anyone into speech that they did not wish to participate in. Justice Robert Jackson wrote the opinion in that case, stating, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Mandatory recitation of the Pledge in public schools had been struck down.
In 1943, the Pledge of Allegiance did not yet contain the words “under God” (they were added in 1954), and subsequent challenges have usually focused on those two words.
In 2004, the Supreme Court agreed to consider that very issue. Though the verdict was a unanimous one in favor of the school district being sued, there were four different opinions written. The majority opinion found that the plaintiff didn’t have standing to bring the suit because he did not have custody of the child who was the subject of the complaint. Three other justices opined that the pledge was patriotic and not religious, even with the words “under God.” Most importantly for the current NFL analysis, those opinions also held that requiring teachers to lead the Pledge was not unconstitutional.
Of course, all of this is an interesting academic discussion about First Amendment jurisprudence, but it’s also all nearly completely irrelevant when it comes to the NFL’s new policy. That’s because the First Amendment protects the freedom of religion, speech, the press, assembly, and the right to petition for redress of grievances, from interference by the government. The NFL isn’t the government, it’s a private entity, and thus, the First Amendment doesn’t apply to the NFL.
But that doesn’t mean the league is clear of any legal wrangling on this issue. The NFL Players’ Association could still claim that the policy is a violation of their collective bargaining agreement and seek to invalidate it on labor law grounds. And regardless of whether there is any action on it in a courtroom, it is certainly being debated in the court of public opinion.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.