I've been casually following the NFL player protests against injustice in modern America. Often the controversy is centered around players like Colin Kaepernick, whose career seems to be over even though he was a [valuable] franchise player and whose [performance] stats seemed to be increasing each season.

The press seems to regularly report in articles like Colin Kaepernick Is Not Going Away:

[Dallas Cowboys owner Jerry Jones] Jones is the most outspoken owner to oppose the protests, but he speaks for more than a few of his colleagues. He has also donated to President Trump, who has frequently attacked the owners for not firing players who protest and who publicly praised Jones for his hard-line stance.

How can the president actively attack a person who is peaceably protesting and exercising their right to free speech; and encouraging (coercing?) others into abridging those rights?

I understand folks like Kaepernick have no protections from corporate America; but the rights and protections from government are guaranteed in the Constitution.


A related article that some may want to read is Kaepernick vs. the N.F.L.: A Primer on His Collusion Case. The article examines Kaepernick case against the NFL and the league "black-listing" him, and not the [seeming] transgressions of the government against him.

Here is a related Trump media event as reported CNN: Trump credits his Twitter wrath for Kaepernick's unemployment.

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    The President has the same freedom of speech as the rest of America, it doesn't violate constitutional rights to "attack" a person for peaceful protest. Just like your "Uncle Bob" yelling at and berating players/coaches/owners doesn't violate constitutional rights. If the president were to make an order saying "any player who kneels for the national anthem shall be jailed", that would be a rights violation. – Ron Beyer Sep 19 at 21:51
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    Thanks @Ron. Correct me if I am wrong, but Trump is is never "off the clock", he is the number one spokesperson of the US government, when he speaks he sets policies, and he has unconditional immunity when he is in office. You seem to be arguing he can use his position as both a sword and a shield. Are presidents protected that way? – jww Sep 19 at 22:04
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    "when he speaks he sets policies" No, absolutely not. He does not set domestic policy by speaking but he may be influencing public opinion just because of being in a position of power... "and he has unconditional immunity when he is in office" Again, absolutely not. The president is (nearly) just as subject to civil/criminal penalties as the rest of us, and there are procedures for in place to enforce those against the president. Presidents are not given "unconditional immunity", this is called impeachment and is the start to a criminal or civil trial of a sitting president. – Ron Beyer Sep 19 at 22:15
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    The President is a separate entity from the United States Government, in your examples you can personally be held liable for your actions, but the company cannot (unless they actively supported or failed to act on that information). The difference is that harassment is a crime, speaking out about topics is a right. You are separate from your employer the same way Trump is separate from the Office of the President, he holds that office, not is that office. – Ron Beyer Sep 20 at 0:45
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    It's different because Colin was an employee of the NFL. If the boss doesn't like what you're doing, well... You're Fired. – Carl Sep 20 at 16:12

The comments have already pointed out that the President of the United States is still a citizen, and all of the rights of a citizen are still protected for them. Additionally, the Administration is allowed to take policy positions which are antagonistic to a person or group's cause, even if that group is practicing their rights to express their views legally. To give a different example, the President and his administration may denounce the position of a group of Neo-Nazis marching legally. So, any argument that the President is acting in an official capacity while making antagonistic comments also probably fails, as the Administration is allowed to take a position on any issue they deem worth taking a stand on.

As noted in another answer and in comments, the applicable laws appear to be 18 U.S. Code § 227, which provides for punishment of government officials who attempt to influence employment decisions through official acts for political purposes, and 42 U.S. Code § 1983, which provides for civil action when a person deprives, or causes the deprivation of, another person's rights under color of law.

18 U.S. Code § 227 likely does not apply for two reasons

  1. The President may show that his conduct was not purely for political purpose
  2. The official statements made do not qualify as official acts per McDonnell v. United States, as they are not

    a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official

42 U.S. Code § 1983 might apply if the official statements were found to be acting under color of law, but I think the statements made so far will fail to meet the qualifications for this statute. Blair v. Bethel School District gives three qualifications for conduct that would allow recovery under this statute:

(1) he engaged in constitutionally protected activity;
(2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and
(3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.

The President's and Administration's official speech appears to fail the second criteria. First, it is questionable whether it qualifies as an "Adverse Action" - in Blair, as well as Hartman v. Moore and Gibson v. United States, the adverse action against the Plaintiff caused actual damage or indignity. However, even if we assume the official speech qualifies as an adverse action for the purposes of the statute, it still appears to be permissible for effectively the same reasons as the first and third arguments presented in the decision:

First, the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one's speech do not give rise to a First Amendment claim.

The actual effect of the Administration's speech has a minimal direct effect on the players it speaks against. The decision further states:

The most familiar adverse actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory in nature” and have the effect of punishing someone for his or her speech

Official speech by the Administration is not "regulatory, proscriptive, or compulsory in nature." While this is not a complete definition for "adverse action," it gives a sense of severity, which official speech does not appear to meet.

Additionally, the President's right to speech, and the Administration's authority and need to make official speech as directed by the President is a competing interest in this case, as was the interest of the Board in Blair:

Third, it is significant that Blair isn't the only party in this case whose interests implicate First Amendment concerns. To the contrary, we assume all of the Board members have a protected interest in speaking out and voting their conscience...

The decision does note that:

The point isn't that the vote against Blair was protected speech simply because it was expressive. Almost all retaliatory actions can be said to be expressive, including those that are manifestly unconstitutional. But, while Blair certainly had a First Amendment right to criticize Seigel and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board.

Similarly, it's probable that a court would find that the President's right to speech and their Administration's corresponding authority to speech against the players' right to protest is equally weighted or even weightier, such that stifling the official speech is as bad or worse than the alleged chilling effect of the speech.

Some examples of things that clearly would fall afoul of 42 U.S. Code § 1983 would be the President or the Administration misappropriating funds to use to pay NFL teams not to hire players who kneel during the national anthem, or signing an Executive Order preventing players who kneel during the national anthem from playing - in both cases, they are taking actions which fall outside the powers of their office, which would qualify as acts made under color of law and clearly chill the players' First Amendment rights.

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    More succinctly, the President's actions so far are just talk. – ohwilleke Sep 19 at 22:32
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    "[T]he Administration is allowed to take policy positions which are antagonistic to a person or group practicing their rights legally" Is that really true? Doesn't, for example, Blair v. Bethel School District argue otherwise? "The First Amendment forbids government officials from retaliating against individuals for speaking out." The administration has already conceded that the President's Twitter posts are official actions. If officials can take official actions that retaliate for protected speech acts, what's left of the first amendment? – David Schwartz Sep 20 at 0:11
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    @IllusiveBrian They're allowed to take a position, yes, but not to harass and pressure with official actions to the point that it would chill people from engaging in speech activities protected by the first amendment. See, for example, Salamaca v. Musso. – David Schwartz Sep 20 at 2:12
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    @DavidSchwartz I think that is going further than the question is asking and my answer is suggesting. I agree that if the Administration, either through the actions of the President or otherwise, was using their official powers to chill Mr. Kaepernick's speech, it may be in violation of his rights and could be stopped by the courts. However, I am not aware of any precedent that a government's protected speech can be stifled by a court in order to prevent the chilling of another entity's protected speech - if you have one, I'd be happy to read it and change my answer accordingly. – IllusiveBrian Sep 20 at 2:39
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    @DavidSchwartz I re-read your other comment and I do see where your argument is coming from, but if stating opposition to a cause or action were prohibited to the government, the government would basically have no ability publish policy at all - for every policy, there is at least one person opposed to it. There would definitely be an issue if the government used its funds to induce the NFL to blacklist Mr. Kaepernick, or sent agents to harass him, but so far their opposition has just been mean tweets and a particularly awkward Superbowl ceremony. – IllusiveBrian Sep 20 at 2:46

Trump, like anybody else, is allowed to express his opinions. Many presidents exhibit some restraint in doing so since even without taking recourse to the powers granted by their office (which in this case would run contrary to the First Amendment) their word tends to carry disproportional weight.

A famous historical quote is "Will no one rid me of this meddlesome priest?" attributed to Henry II of England leading to the murder of Thomas Becket, the Archbishop of Canterbury. Henry II ultimately had to do public penance for his utterance.

Neither restraint nor penance are really major parts of Trump's political toolbox nor were they part of his election platform. His behavior here may be considered inappropriate or not befitting for his position but it does not constitute a First Amendment issue as long as he does not engage any powers granted to him by his office.

Both Trump and Kaepernick have free speech rights involved, so it isn't a free speech issue so long as it sticks to two people yelling at each other.

The applicable statute is 18 US Code 227. Is Trump a 'covered person' under this statute? Yes. Was he trying to influence an employment decision or practice by a private entity? Absolutely. But is it 'solely on the basis of political affiliation'? Many would argue no. Is politics involved? Certainly. But it is by no means the sole reason. Misguided nationalism, mild racism, a desire that entertainers not use their platform to effect social change, giving business advice...there are plenty of reasons Trump could cite to invalidate this portion of the statute, and it would be very difficult, if not impossible, to refute.

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    Your analysis overlooks the acts that are actually forbidden by the statute. The intent to influence an employment decision is only relevant if either (a)(1) or (a)(2) is present. What "official act" did Trump "take or withhold" in an attempt to influence the NFL's hiring practices? I don't think saying "these guys ought to be fired" is an official act. – phoog Sep 20 at 16:45
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    @phoog Issuing an official statement is an official act and the Trump administration concedes that Trump's tweets are official statements. – David Schwartz Sep 20 at 18:08
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    @DavidSchwartz I'm not convinced that an official statement is an official act. The definition at section 201, which admittedly does not apply here directly, suggests that an act must be more than a statement. – phoog Sep 20 at 19:23
  • "These guys ought to be fired" is a statement. Making a statement is an act. "I order you to fire these guys" is also an act. Can you not see the difference between one "official act" and the other? – Beanluc Sep 20 at 20:19
  • "Making a statement is an act" is begging the question. – Sneftel Sep 21 at 10:47

protected by feetwet Sep 20 at 12:02

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