Does Colin Kaepernick Have A First Amendment Case Against Donald Trump?

The NFL's new national anthem policy may be unconstitutional, legal experts say.
Former San Francisco 49ers quarterback Colin Kaepernick (middle) and his teammate Eric Reid (No. 35) began kneeling in 2016 to protest racial inequality and police brutality. Now both are out of the NFL.
Former San Francisco 49ers quarterback Colin Kaepernick (middle) and his teammate Eric Reid (No. 35) began kneeling in 2016 to protest racial inequality and police brutality. Now both are out of the NFL.
USA Today Sports / Reuters

If his collusion case against the NFL and its team owners fails, former San Francisco 49ers quarterback Colin Kaepernick, allegedly blacklisted by the league for his decision to kneel in protest during the national anthem, may have another legal recourse: suing President Donald Trump and the NFL for violating his First Amendment rights.

Trump has spent much of the past year trashing the protests of predominantly black players to the delight of his political base. He has repeatedly called on NFL owners to prohibit players from protesting. Last September, he used a campaign rally in Alabama to urge the team owners to fire any “son of a bitch” player who protested.

Trump’s demagoguery has had an obvious effect on the NFL and its owners, who in May approved a new policy that requires players to stand for the national anthem if they are on the field before games. Trump has continued to wield the issue since: on Monday, he blamed anthem protests for his abrupt cancellation of the Super Bowl champion Philadelphia Eagles’ Tuesday visit to the White House, even though no members of the team knelt during the 2017 regular season.

But Trump’s actions, some legal experts argue, may also have opened him up to claims that he and the NFL violated the players’ First Amendment rights to free speech and peaceful protest, especially if his threats against the league helped force owners to institute the new policy or influenced their treatment of protesting players.

“It’s a very bold step to sue the United States based upon alleged wrongdoing of the sitting president, and filing such a claim might make a player such as Colin Kaepernick into an even more polarizing figure,” said Marc Edelman, a law professor at City University of New York’s Baruch College. “However, based upon the pure black-letter law, a [First Amendment] claim of this nature may have a reasonable chance to succeed.”

As every graduate of YouTube Comment Law School knows, the First Amendment typically protects individuals only when the government, or a government official, infringes upon their free speech rights. NFL teams and their owners are private actors and thus are free to do as they wish, at least with respect to the First Amendment.

But in certain cases, private businesses can be considered state actors, and Kaepernick and other NFL players ― like his former San Francisco teammate Eric Reid ― who appear to have been ostracized over their protests, could have a credible argument that the NFL, in this instance, was a public entity that was improperly influenced by the president.

The NFL, Edelman argued, could be considered a state actor for two reasons: First, because it receives tax breaks from the federal government, and second, because most of its teams play in stadiums that are partly financed by local governments. NFL stadiums have also received billions of dollars in federal tax subsidies.

Federal courts have previously ruled that sports franchises have acted as state actors. In 1978, a judge found that the New York Yankees’ policy banning female reporters from their locker room violated the Constitution’s Equal Protection Clause because New York City owned Yankee Stadium, qualifying the team as a state actor, as Edelman notes in a brief he wrote examining the possibility of NFL players filing a free speech lawsuit.

None of this would matter, however, were it not for Trump’s own actions ― and specifically his tweet in September suggesting that certain tax breaks be eliminated if the league didn’t start punishing the protesters.

“President Trump made things substantially worse for himself when he tweeted what reasonably can be construed as a threat to attempt to take away tax benefits from NFL teams if they did not fire protesting players,” Edelman said.

The NFL voluntarily relinquished its tax-exempt status in 2015, but the league’s teams and owners still benefit from certain tax breaks, including one that subsidizes federal bonds used to build new stadiums. House Republicans attempted to repeal that tax break in 2017, and The Washington Post reported Monday that Trump assigned aides to research how the White House could punish the league through tax reform. Trump, however, eventually signed a tax reform law that maintained the current subsidy.

Had Trump followed through on this threats to change NFL-related tax laws, a First Amendment case against him would be “more straightforward,” said Leah Litman, a constitutional law professor at the University of California, Irvine, who has written about the potential for NFL players to bring a First Amendment case against the president. Litman also suggested that ESPN anchor Jemele Hill, who came under criticism from the White House after calling Trump a white supremacist, could have had a potential First Amendment claim against the president had ESPN chosen to fire her.

As it stands, the question is whether Trump is merely using the presidential bully pulpit or actually “changing [owners’] minds in his capacity as president,” Litman said. “That is, is he using official channels rather than just using the power of speech?”

The mere threat of sanction from the White House could bolster a First Amendment case if Trump’s statements helped push the NFL to change its approach to the anthem and the athletes who protested during its playing. In his brief, Edelman noted a 1963 Supreme Court ruling in which the court said a private company had become a state actor because “a government entity used the ‘threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation’ to induce private entities to act in a way that chills free speech rights.”

Some NFL owners have already admitted that Trump influenced the league-wide debate over protests and its new anthem policy.

Trump “certainly initiated some of the thinking, and was a part of the entire picture,” Dallas Cowboys owner Jerry Jones told Sports Illustrated last week.

“I was totally supportive of [the players] until Trump made his statement,” Miami Dolphins owners Stephen Ross said in depositions during Kaepernick’s collusion case, according to the Wall Street Journal. “I thought he changed the dialogue,” Ross added.

Those statements “strengthen the argument that the president of the United States violated the First Amendment rights of NFL players by petitioning their bosses to fire them and threatening financial harm to their bosses if they do not do so,” Edelman said.

Kaepernick may not need to turn to federal courts to resolve his current dispute with the NFL. Though collusion cases are notoriously difficult to win, Kaepernick’s lawyer Mark Geragos said last week that the case was “about to take a dramatic turn.” And for current players, at least, redress regarding the NFL’s new anthem policy might be found in state constitutions or federal labor laws instead of a moonshot First Amendment complaint.

But with Republican candidates using the NFL protests as a political prop on the campaign trail, and Trump continuing to argue that the league hasn’t done enough, the possibility of a First Amendment case against him isn’t as remote as it might seem.

“The president,” Litman said, “is certainly making it stronger as days go by.”

This story has been updated to note reports that Trump assigned aides to research how the White House could punish the NFL through tax reform.

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