Donald Trump, in all his unifying erudition, has asked NFL owners to fire players who take a knee during the national anthem. (It’s okay for the white rubes populating Trump’s rallies to insult the flag by wearing it as a t-shirt or hanky or hat, holding it horizontal, letting it touch the floor, eating and drinking off paper plates and cups impressed with its image, or defacing it by writing on it and using it as political advertising. But (mostly African-American) athletes quietly taking a knee? It’s an outrage!)
What if an NFL franchise owner did fire a player for “disrespecting” (god I hate that word) the flag? Wouldn’t an NFL owner violate the First Amendment by targeting a player’s expression and speech?
No. The US Constitution is not a code that governs the behavior of private, non-governmental people or entities. Its audience is the government. The Constitution creates the government, defines the scope of governmental power, and limits that scope by recognizing the existence of certain rights retained by the people. The only part of the Constitution that restricts private conduct (now that prohibition has been repealed) is the Thirteenth Amendment, which prohibits slavery or involuntary servitude anywhere in the United States, regardless whether there’s a governmental entity involved.
The First Amendment provides,
Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although this rule, on its face, applies to Congress, federal courts have long held that it applies to every branch and all levels of government.
Neither the NFL nor any NFL franchise, however, is a government, so neither is capable of violating the First Amendment. So an NFL franchise owner could fire an NFL player for taking a knee during the national anthem without trampling on that player’s constitutional rights.
Donald Trump, however, is (tragically) a governmental actor. And the more he belches and tweets his way into the NFL anthem flap, the more likely it becomes that any adverse employment decision made against an NFL player (or any other employee) on the basis of that player’s sideline expression would implicate First-Amendment concerns.
There’s a principle of law known as proximate cause. It goes something like this: the person legally responsible for some harm that has befallen another is not just anyone involved in bringing about the harmful result, but the person who was the primary mover in the chain of causation — not just any link in the chain, but the most prominent link in the chain.
This often means the last person in the chain of causation. For example, when an arsonist sets a house aflame by holding a burning tinder to its eaves, it is he who is liable, not the person who lent him the ladder or sold him a box of matches. But it’s not always the last link in the causal chain that is the proximate cause of a bad result; if you violently shove a person who is holding a loaded gun and that person’s finger gets jarred against the trigger, causing the gun to discharge, then it is arguably you rather than the possessor of the trigger finger who is the proximate cause of whatever damage results.
The NFL holds that loaded gun, and maybe at some point it will point that loaded gun in the general direction of players’ expressive conduct. If the NFL pulls the trigger on its own, there is no constitutional violation. But if Trump violently shoves the NFL, beating owners into submission with boycotts and threats, then it will be the President of the United States and not the NFL who is arguably the proximate cause of punishment for speech.
And that could be a significant constitutional problem.