The recent decision by the NFL to fine teams if their players kneel during the national anthem is creating a lot of controversy. As far as the legal questions go, I think the NFL is violating employment law, that the NFLPA will sue, and that if the judge isn’t biased the rule will be overturned. For an explanation of how employment law applies here, see this article: https://profootballtalk.nbcsports.com/2018/04/13/can-nfl-teams-make-hiring-and-firing-decisions-based-on-anthem-protests/ Imposing fines on teams rather than players was an obviously illegitimate effort to circumvent employment law and the NFLPA’s power to negotiate on behalf of players. It indirectly punishes players for acting in ways they were specifically told they could act.
But I’m not so interested in the legal question here. I’m interested in the ethical issues. The NBA has a rule requiring players to stand for the anthem. Suppose, contrary to fact, that the NFL had the legal standing to do so as well. Would it be morally permissible for these leagues to ban this activity? Most of the discussion has focused on people’s rights, so I want to start there. However, I don’t want to end there.
On the one hand are consideration of employer rights. Employers need to have rights over the conduct of employees in order to have a viable working environment. If you can’t fire someone for not doing their work or for making it impossible for others to work, a business can’t succeed. However, the practical issues aren’t really where employer rights derive from. Employer rights are a special instance of the right to free association. Employers can choose whether or not they want to associate with someone as part of an employer/employee relationship. The two parties are supposed to be able to discuss the terms of this relationship in advance and come to an agreement that is mutually acceptable before entering into the partnership. Placing limits or requirements on how employers or employees can make such agreement violates this right to free association. Prohibiting certain conditions on employment therefore appears to be a violation of rights, and this would seem to extend to things like requiring people to stand for the anthem on certain work days.
What about the right to free speech? This right is as fundamentally important as the right to free association. However, freedom of speech doesn’t extend to all contexts. In particular, some settings allow people to prohibit speech. As a teacher, I limit speech in a number of ways. I don’t silence opinion. But I would kick people out of class if they spent the whole time loudly talking to one another about things that are irrelevant to the course. I would also kick someone out of class if they started screaming at people or insulting people or deliberately trying to interfere with people’s ability to learn. In addition, people are typically allowed to limit speech on their own property. Homeowners are within their rights to tell people to leave if they are speaking in ways the owner doesn’t tolerate. Businesses are allowed to tell people to leave if they start behaving in disruptive ways. In general, in non-public forums limiting speech is permissible. Freedom of association within the bounds of one’s own property or business typically override people’s right to free speech within those areas. People are of course free to find other forums to express themselves.
As an issue of rights, then, I think the NBA is acting within their rights, and the NFL would be if it weren’t for the particular details of this case. However, rights aren’t all that matter in these contexts. All rights can be exercised in ways that are immoral. The president has the right to freedom of speech. He uses it in all sorts of immoral and disgusting ways on Twitter. White supremacists have the right to tell people to leave their property. The fact that they would automatically use this right to order all non-white people off their property makes them horrible people. The fact that someone has a right to do something doesn’t mean that one cannot criticize and condemn people for how they choose to exercise those rights.
What the NFL is trying to do right now is immoral. Citizens of this country are being shot down by agents of the state and then facing no significant consequences for what they have done. A large number of people in this country are either so indifferent to those lives or so worshipful of the state that they are willing to tolerate the current state of affairs and allow this situation to continue. They go about their own lives confident that they won’t have to face the reality of what is happening and content with the fact that it won’t get in the way of their enjoyment of things. NFL players have a great opportunity to interfere with that quiet, smug indifference. They can take the fun Sunday past-time and force people to see that there is a problem. To think about something that makes them uncomfortable. To remember that many people think that they are bad people for their acceptance of what is happening. It is important for people to have a platform to interrupt people’s quiet blindness and to make them see what is happening.
People hate kneeling during the anthem for the same reason they hate the commercials that come on with images of starving children or abused animals. It forces them to see something they don’t want to acknowledge is part of reality. It takes them from their mental abstraction of these situations that they feel okay with to a more stark reality that they don’t want to see. This is exactly how effective protest should work. In this case, there are far too few people with the opportunity to remind people of what is happening and to try to force them to care for a minute. NFL players have a rare chance to make people look at some black people whose lives do matter to them and make them realize how many other ones don’t. Taking this away from these players is a terrible thing. It amounts to saying that not only do black lives not matter enough to punish cops for wrongfully taking them, they don’t even matter enough to justify causing people unease on Sunday mornings when they are trying to be entertained. That’s a horrible thing to say, and it is exactly what they NFL is choosing to say with this change in their rules.