WASHINGTON ― When President Donald Trump called on NFL owners to suspend or fire players who protest racism and police brutality by kneeling during the national anthem, he was doing something rare for a U.S. president: using the power of the state to publicly call for people engaged in political protest to lose their jobs.
“The McCarthy era is the closest comparison that comes to mind,” said Kevin Boyle, a professor of American history at Northwestern University, referring to the blacklisting of professors, writers and autoworkers during Sen. Joseph McCarthy’s campaign to root out alleged Communists. “Even then I don’t remember a case of a president explicitly calling for a particular American to be fired from private employment. And what does it say about our moment that the closest comparison is McCarthyism?”
Another academic pointed to Ronald Reagan, who in August 1981 fired more than 11,000 air traffic controllers who refused to quit their strike and go back to work. “To strike as a group or refuse to cross a picket line as an individual are examples of free speech,” said Elizabeth Tandy Shermer, an assistant history professor at Loyola University Chicago. But that case was different, as Reagan was taking a legal action and, under federal law, the air controllers weren’t legally permitted to strike.
In his previous career as a reality television star, Trump could fire someone for not standing during the national anthem — the First Amendment limits the power of the government, not private entities like the Trump Organization or NBC’s “The Apprentice.” NFL team owners’ power to fire their employees is similarly unrestrained by the Constitution. (Though union contracts may offer protection.)
But when the president urges an employer to punish employees who engage in free speech, that is against at least “the spirit” of the First Amendment, said Floyd Abrams, an attorney and expert on constitutional law. “We would ordinarily look to a president to protect, not vilify” that spirit, Abrams added.
An employer can impose certain rules that may abridge free speech rights at work. But “we’re really talking about Donald Trump here,” said Wilma Liebman, the former chair of the National Labor Relations Board under President Barack Obama. If a football player is fired for kneeling and the team owner cites the fact that the president told him to do it, “I think you have a First Amendment case,” she said.
Not everyone agrees: “It’d be very hard if a player got fired to sue the president and say he’s responsible,” countered Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “It’d be the team’s decision to fire the player.”
But Trump calling for NFL players to lose their jobs is troubling for another reason, the president’s critics say: It shows he treats the right to free speech as conditional rather than absolute.
Trump didn’t call white supremacists at the deadly rally in Charlottesville, Virginia, “son of a bitches,” Kwame Rose, a prominent Baltimore activist, pointed out. “They pick and choose when you can exercise your First Amendment right, and they also choose who can exercise their First Amendment right.”
Trump and his administration have attacked First Amendment protections for the media, people who burn the American flag and a protester who laughed at Attorney General Jeff Sessions during a congressional hearing.
Administration figures have unleashed a barrage of attacks on NFL players. On Monday, White House press secretary Sarah Huckabee Sanders suggested that athletes who are upset about police violence should protest to police officers directly. Sessions called it “a big mistake to protest in that fashion.” And Treasury Secretary Steve Mnuchin said that players can “do free speech on their own time.”
“The wonder is not the unhinged behavior of this weekend but rather that it took Trump so long to exploit a target as rich in potential racial resentment as wealthy black athletes who have the temerity to believe in the First Amendment,” The New Yorker’s Jelani Cobb wrote Sunday.
”He’s fine with punishing dissenters, so long as he abhors what the dissenters are saying,” former Obama administration official Cass Sunstein wrote in Bloomberg View on Monday.
“He’s fine with punishing dissenters, so long as he abhors what the dissenters are saying,”
- Cass Sunstein, former Obama administration official
There are exercises of speech that Trump and his administration do support: free speech on college campuses, the kind that aims to counter liberal “political correctness”; a baker who doesn’t want to make a wedding cake for a same-sex couple; the First Amendment Defense Act, which could codify discrimination against LGBTQ Americans; support for keeping Confederate statues; and the president’s own right to to express his views on Twitter.
“Here, they’re saying on the one hand you have the right of free speech to design a cake [and not sell it to a same-sex couple], but you can’t express yourself on something as central as whether you think there’s racial justice in the country,” said Paul Secunda, a law professor at Marquette University in Wisconsin. “It’s so inconsistent and so hypocritical, but then again, it doesn’t surprise me or anyone else who has been watching this administration.”
There is one precedent for a president weighing in on an NFL athlete protesting racial injustice, but for the opposite reason. In 2016, Obama said, “I also always try to remind folks that part of what makes this country special is that we respect people’s rights to have a different opinion.”