Take a Knee: Athletes’ Newest Form of Protest and the Implications on the First Amendment

By Ali Boyd
Associate Editor, Vol. 22

Over the years, many American athletes have used their position of fame and influence to make political statements.  During the 1968 Mexico City Olympics, African-American sprinters Tommie Smith and John Carlos made headlines when they accepted their medals with raised fists in the air to represent black power.  In December 2014, five players of the St. Louis Rams walked onto the field with their hands raised above their heads, a reference to the “Hands Up Don’t Shoot!” symbol that had dominated protests and riots in nearby Ferguson in the aftermath of the police shooting of Michael Brown. (See Time’s article for further examples of athlete protests throughout history.)

In each of these instances, the athlete in question has faced severe backlash from both the public, as well as the athletic community. Though some Olympians praised the action of Smith and Carlos, the politicization of the international sporting event was condemned by the International Olympic Committee, resulting in their immediate suspension from the U.S. track and field team.  Similar backlash occurred in St. Louis, where the local Police Officer’s Association demanded that the Rams players involved in the demonstration be disciplined by the NFL.

Although the United States Constitution protects athletes’ right to make these statements without government intrusion, it does not protect them from public reaction. The First Amendment provides, in part, that “Congress shall make no law…abridging the freedom of speech.”[1]  This includes acts, such as raising a fist during the national anthem that represent symbolic speech.[2]  Thus, the government, state or local, cannot pass a law that prohibits that freedom.  However, the First Amendment has typically not been held to apply to private actors.  Because of this, private governing athletic organizations such as the U.S. Olympic Committee and the NFL are free to take whatever disciplinary steps they see fit in response to speech of which they disapprove.  No NFL fine or Olympic disqualification could ever run afoul of the First Amendment.

The latest wave of athletic protests, however, has sparked reaction that may toe the fateful state action line.  At the beginning of this NFL season, Colin Kaepernick, a quarterback for the San Francisco 49ers, chose to sit during the national anthem before the team’s preseason games.  As justification for his actions, Kaepernick stated, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”  In an attempt to make a political statement while still showing respect for our troops and country, Kaepernick’s sitting transitioned into kneeling only a few games later. Though the quarterback was initially alone in his silent protest, countless others have since joined in his symbolic gesture.  In the two months since Kaepernick first made his statement, the practice of kneeling during the national anthem has become widespread as a way to show solidarity with the struggles of racial minorities in the United States, particularly African Americans and the Black Lives Matter movement.  (For a complete history of Kaepernick’s demonstration and those who have since joined him, see SB Nation’s timeline of the protests.)

Just as with previous instances of political statements by professional athletes, the movement has not come without its criticism.  Though the NFL has yet to reprimand any player for silently protesting during the national anthem, it is not uncommon for players who do so to be booed by fans.  U.S. Representative Steve King called Kaepernick’s activism “sympathetic to ISIS.”  In Beaumont, Texas, a youth football team was forced to disband entirely after several players quit in response to their teammates kneeling.

More disturbing, particularly in light of the First Amendment’s state action doctrine, are the reactions of certain law enforcement officers.  A local Sheriff’s union in Broward County, Florida, called for the suspension of details that protect the Miami Dolphins in response to players kneeling.  In Jefferson Parish, Louisiana, police officers refused to work a security detail for Bonnabel High School football games when players knelt during the national anthem.

This is where the First Amendment case becomes more tenuous. The Court has held that the First Amendment prohibits speech infringement by both government bodies and state actors—those  people who act on behalf of a governmental body, such as police officers.  Certainly, no protestor has yet to be arrested merely for kneeling during the national anthem, which would be a clear violation of their rights, as would an entire police force refusing protection to a person solely based on speech with which they disagree.  However, the cases above provide an interesting twist, as typically police officers volunteer to work protection detail for games.

The question for First Amendment purposes becomes where the line is to be drawn between a police officer acting as a private individual and as a state actor.  Though the Supreme Court has yet to rule on this exact question, several propositions may create a distinction in cases like this.  Police officers may be state actors only when they are mandated to provide protection rather than on a voluntary basis.  Under a broader view, police officers may be state actors any time they are acting in an official capacity.

Under any formulation it is hard to imagine a court finding a First Amendment violation where officers simply choose not to sign up for an extra duty, especially when enough officers remain to provide the service requested.  This was the case in Louisiana.  However, police forces should be careful as their refusal of protection moves closer to official force policy.  Such may be the case if the entire Broward County police force were to refuse protection to the Miami Dolphins while providing it to other teams.  It is in these cases where the argument that police were acting in a private capacity becomes much weaker.  As this protest and future protests like it continue on, police officers should be careful not to blur the distinction between their actions as private individuals and their actions as state officers who have a duty to protect the rights of all citizens.

[1] U.S. Const.,amend. I.

[2] Texas v. Johnson, 491 U.S. 397 (1989); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).