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The First Amendment doesn’t apply to private institutions. Private employers can fire employees for their speech without having to worry about the First Amendment.

What the NFL’s new rules for anthem protests really mean for the First Amendment, according to experts

Is this true? The word "employers" suggests that he's using the word institution to include businesses.

So can a person working for a grocery store or drugstore be fired for saying "I didn't support the invasion of Libya" or wearing a shirt that says "War sucks"?

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    Most NFL teams are privately owned and the players really are employee's of the team, not the NFL. I think the word "institution" is often used to refer to anything with an organized structure, such as private businesses, government entities, and educational ones. Institution including businesses seems to fit the definition of the word. – Ron Beyer May 24 '18 at 15:35
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    The staggering amount of Americans who don't understand this blows my mind. – ell May 24 '18 at 17:50
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    Article on free speech behind a pay-wall... Interesting – DJohnM May 24 '18 at 20:31
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    @phoog Okay, fine, let me rephrase. "Lower levels of government might afford you additional protections (e.g. against politically motivated firings) that the Constitution does not." – Azor Ahai May 24 '18 at 21:44
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    Relevant XKCD (caution: language) – BruceWayne May 25 '18 at 19:21
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In most of the United States, the answer is yes.

The First Amendment protects your freedom of speech from government interference, not from private interference. You don't have to be friends with someone who says "war sucks," and you can kick someone out of your house for opposing the invasion of Libya. But corporations enjoy mostly the same First Amendment protections as humans, so they are also free -- as far as the First Amendment is concerned -- to cut ties with people for speech they don't like.

But depending on the statement that caused it, an employee's firing could still violate a lot of other free-speech laws.

At the state and federal level, for instance, there are tons of laws prohibiting adverse employment actions based on all kinds of things, especially whistle-blowing activity bearing on activity inside the company.

Several states ban companies from firing employees for election-related and other political advocacy. The exact scope of protections varies, but California, Colorado, Illinois, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, South Carolina, Utah, Washington and West Virginia all offer level of protection.

This article is a few years old, but it rounds up quite a few of the relevant laws.

Another possibility that I'd be interested in hearing more about is whether this rule violates antitrust law. The NFL has an exemption from antitrust rules when it comes to broadcasting, but I don't know of any reason why the Sherman Act wouldn't apply to this horizontal agreement between competitors to refrain from and sanction certain activities that may have an effect on their bottom line.

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    @hszmv: I'm less concerned with the players' freedom of movement from team to team, which is governed by the CBA and therefore not as vulnerable to antitrust action; I'm concerned with the fact that the teams have agreed to how their players will conduct themselves. The rules for playing the game are one thing, but I don't see as much justification for an agreement on how they will behave during the anthem. – bdb484 May 24 '18 at 19:41
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    @DavidGrinberg: I don't think any teams are government-owned. You're probably thinking of the Green Bay Packers, who are "publicly owned" in a sense similar to Ford or Facebook. It's a private company with shareholders and a board of directors. – bdb484 May 24 '18 at 19:43
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    @DavidGrinberg It appears that all NFL teams except that Packers are owned by individuals. As bdb484 mentions, the Packers are a corporation. No NFL teams appear to be (or appear even to be allowed to be) majority or even plurality-owned by a government entity. – reirab May 24 '18 at 19:45
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    @bdb484: I would imagine it would fall under a Franchise system. Each NFL team is licensed by the NFL and must comply with certain rules in exchange for the right to use NFL branding and receive the benefits of the NFL. Teams do have non-game play rules they will abide by as well, such as salary caps and soda and beer brands that can be sold at the stadium. I'm not up on how easy it is to change an agreement, but the Franchise agreement would have rules and standards the NFL expects from every team. It will probably be added here. – hszmv May 24 '18 at 20:00
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    It sounds like that's how they're planning to do it, but I don't think that helps them. A trademark holder is of course free to put restrictions on the use of its marks, but the NFL is just the owners of the teams, so any "rules" it imposes on teams are actually just agreements among the teams. Since a Sherman Act violation requires an agreement, putting it in an agreement doesn't seem like a great defense. – bdb484 May 24 '18 at 20:09
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Private entities are not restricted by the First Amendment.

The First Amendment to the U.S. Constitution is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Note the subject here: 'Congress.' As originally written, the First Amendment (and nearly all of the rest of the Bill of Rights) restricted only the actions of the U.S. national (federal) government. Even states and local governments were not bound by them, as the U.S. Supreme Court ruled in Barron v. Baltimore, 1833.

In 1868, the 14th Amendment to the U.S. Constitution was adopted. Among other things, it says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Courts have since ruled that this amendment requires states to abide by most of the same limitations that the Bill of Rights places on the federal government, a concept known as 'incorporation.'

However, no part of the Constitution restrains individuals, corporations, or any other non-government entity to abide by the restrictions that the First Amendment places on Congress.


In short, when someone complains that a private entity is violating their First Amendment free speech rights (or any of their other First Amendment rights,) it's because either:

  • That entity is acting on behalf of the government (e.g. under contract) or

  • The complainant doesn't actually understand the First Amendment (or at least hopes that their audience doesn't.)

  • +1 For being the only answer thus far to cite the actual text of the First Amendment and point out why it only applies to the government instead of merely asserting that it does so. – jmbpiano May 24 '18 at 23:07
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Is this true? The word "employers" suggests that he's using the word institution to include businesses.

Yes.

So can a person working for a grocery store or drugstore be fired for saying "I didn't support the invasion of Libya" or wearing a shirt that says "War sucks"?

Yes.

Virtually all of the rights in the federal constitution are only protected against government action. For instance, the federal constitution does not protect employees of a private business against being fired for their religion. Legislatures can enact statutes protecting employees of private businesses (e.g. the Civil Rights Act does generally ban firing an employee for their religion), but in the US that's not normally a constitutional matter.

  • "Yes." - but why? : People who are hired 'at will' to work at grocery stores "can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination) ['for good cause, or bad cause, or no cause at all'], and without warning,[1] as long as the reason is not illegal (e.g. firing because of the employee's race or religion)." – Mazura May 25 '18 at 18:45
  • @Mazura: right, so the question becomes, "if firing because of someone's race or religion is or can be illegal, then is firing because of their expressed disapproval of war illegal?". To which the answer is still "no", but it requires some work to actually show that :-) – Steve Jessop May 26 '18 at 12:13
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The short answer is that the First Amendment doesn't apply to private employers. But, that is not the end of the story in the NFL case.

The NFL is a union shop. All players of union members and are subject to a collective bargaining agreement with the owners, in addition to having individualized contracts with their respective franchises.

Generally speaking, one of the core provisions of any collective bargaining agreement is to prohibit employees from being fired without cause during the term of their employment contracts. Union employees are almost never employees at will. And, the collective bargaining agreement will generally have hard fought definitions concerning what constitutes good cause to fire an employee and what does not.

So, while the First Amendment doesn't apply to the NFL, that doesn't mean that NFL players are without all protections from wrongful firing. But, in the NFL case, this turns on the definition of "good cause" adopted in a negotiated collective bargaining agreement between players and owners, and not upon the United States Constitution, and is resolved via an arbitration process agreed to between the union and the owners, rather than in the court system.

Further, as @bdb484 notes, state laws sometimes prohibit firing employees for particular reasons, and specify the consequences of violating those laws.

For example, Colorado law, which would presumably apply to individual employment contracts within the collective bargaining agreement between players for the Denver Broncos and the owners of that franchise, prohibits firing employees for off duty activities that don't affect their work duties subject to certain exceptions, with specified penalties if this requirement is violated (that are generally less generous than a wrongful termination suit, for example, alleging racial discrimination).

This particular Colorado law wouldn't be relevant to something that an NFL player does on the field, but might impact the ability of the NFL to fire a Denver Bronco player for some kinds of off the field conduct. (The statute was enacted in the first place, primarily to protect employees from being fired for smoking tobacco while away from work.)

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The first amendment does provide for freedom of speech regardless of emoyment, etc. It says Congress will not make laws to abridge freedom of speech.

Amendments are in power as part the Constitution, and that is to be the supreme law of the country. The meaning of the amendment is there cannot be a supreme and, what follows directly, any other law to justify curbing decent verbal activity.

protected by feetwet May 25 '18 at 23:35

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