NFL Anthem Protests: First Amendment & Employment Law

The controversy over NFL players protesting during the national anthem raised an important constitutional question: does the First Amendment protect a professional football player from discipline by an NFL team for kneeling, sitting, raising a fist, or otherwise protesting during the anthem?

The short answer is that the First Amendment generally restricts government, not private employers. NFL teams are generally private employers, so a player’s constitutional free-speech claim against a team is very different from a public employee’s claim against a government agency.

That does not mean professional athletes have no legal or contractual protections. Collective bargaining agreements, employment contracts, labor law, state law, league rules, discrimination law, and specific facts may matter. But the older version of this MyArticles article made a major constitutional error by assuming that because some stadiums received public funding or because anthem protests concern politics, private NFL teams automatically become state actors for First Amendment purposes.

This updated review explains the state-action doctrine, the history of NFL anthem protests, the difference between constitutional and employment rights, collective bargaining, the National Labor Relations Act, public employee speech, and the practical legal questions raised when private employers regulate political expression.

This article provides general educational information, not legal advice.

The First Amendment Text

The First Amendment begins:

“Congress shall make no law … abridging the freedom of speech…”

Through later constitutional doctrine, free-speech protections also constrain state and local governments.

The critical point is that the Constitution regulates governmental action. It does not ordinarily create a general right to say anything at any time while working for a private employer.

What Is the State-Action Doctrine?

The state-action doctrine asks whether conduct challenged under the Constitution can legally be attributed to the government.

The Constitution Annotated, maintained by Congress, explains that most constitutional rights apply to governmental conduct rather than purely private conduct.

A private entity can sometimes be treated as a state actor, but those cases are limited and fact-specific.

Courts have considered theories involving:

performance of a function traditionally exclusive to government;
government coercion or significant encouragement;
close joint participation between government and the private party;
certain unusually close relationships between the state and private conduct.

Receiving government benefits or operating in a regulated industry does not automatically transform every decision of a private business into governmental action.

NFL Teams Are Generally Private Employers

Professional football franchises are privately operated organizations.

That means a team regulating employee conduct ordinarily acts as a private employer rather than as the government.

A player disciplined by a team therefore cannot simply say, “The First Amendment protects my speech,” and end the legal analysis.

The first constitutional question would be whether the team action qualifies as state action at all.

Does Public Stadium Funding Make a Team a State Actor?

Not automatically.

Many professional sports facilities have complicated relationships with cities, states, public authorities, tax arrangements, leases or public financing.

But public funding does not generally mean every employment decision made by a team becomes an act of government.

The legal question is not simply whether public money is somewhere in the relationship. It is whether the particular challenged action—such as disciplining a player for protest—is sufficiently attributable to the government under state-action doctrine.

The former version of this article skipped that crucial step.

How the NFL Anthem Protest Controversy Began

In 2016, San Francisco 49ers quarterback Colin Kaepernick began protesting during the national anthem.

He first sat and later knelt during the anthem. Kaepernick explained that his protest concerned racial injustice and police violence against Black Americans.

The protest became nationally prominent and was adopted in different forms by other athletes.

Supporters viewed kneeling as peaceful political expression drawing attention to injustice.

Critics viewed it as disrespectful toward the flag, military members, veterans or national institutions.

The disagreement was political and symbolic, but the constitutional analysis still depended on who was regulating the speech.

Private Employers Can Often Regulate Workplace Expression

Private employers generally have greater authority than government employers to regulate employees’ speech during work.

Examples can include rules concerning:

uniforms;
customer interactions;
political displays;
social-media conduct;
workplace harassment;
public statements made on behalf of the company.

That authority is not unlimited. Other laws or contractual rights can restrict employer action.

Employment Contracts Matter

Professional athletes work under contracts and league labor agreements rather than ordinary at-will arrangements alone.

A dispute can turn on questions such as:

What does the player contract authorize?
What conduct rules exist?
Does the collective bargaining agreement limit discipline?
What grievance or arbitration procedures apply?
Was a league policy adopted consistently with labor obligations?

Those are contractual and labor-law questions rather than direct First Amendment questions.

The Collective Bargaining Agreement

NFL players are represented by the NFL Players Association.

The relationship between players, teams and the league is governed in significant part by collective bargaining.

Collective bargaining agreements can address:

discipline;
working conditions;
grievance procedures;
compensation;
health and safety;
league and club authority.

If an anthem policy materially changes a term or condition of employment, labor-law questions may arise about bargaining obligations depending on the circumstances.

The National Labor Relations Act

The National Labor Relations Act protects many private-sector employees who engage in concerted activity for mutual aid or protection regarding working conditions.

The National Labor Relations Board explains that employees may have protection when acting together to improve pay, safety, scheduling or other terms and conditions of employment.

Political expression is not automatically protected by the NLRA merely because it concerns an important public issue.

The connection to employees’ working conditions can matter.

Political Activity and Labor Law

Suppose employees collectively protest a proposed law because it would directly reduce their wages or workplace protections. That political activity may have a stronger connection to mutual aid or workplace conditions.

By contrast, an employee’s purely personal political statement on an issue unrelated to employment may not receive the same NLRA protection.

The analysis is fact-specific.

What About State Laws Protecting Political Activity?

Some states provide employees protections for lawful political activities or off-duty conduct beyond what federal law requires.

Those laws vary significantly.

Questions may include:

whether the activity occurred during work;
whether it occurred off duty;
whether the statute protects political affiliation, activity or both;
whether exceptions apply.

This is one reason a general statement such as “private companies can fire employees for any speech” is also too broad.

Public Employees Have a Different First Amendment Analysis

A teacher at a public school, police officer, city employee or other government employee works for the state.

The First Amendment can therefore apply, but public employees do not have unlimited speech rights at work.

Supreme Court doctrine distinguishes among:

speech made as part of official job duties;
speech made as a citizen;
matters of public concern;
the government’s legitimate interests as an employer.

The public-employment cases therefore do not transfer automatically to NFL players.

Speech as a Citizen vs. Speech as an Employee

Government employees may receive First Amendment protection when speaking as citizens on matters of public concern, but courts balance that interest against the government’s need to operate effectively.

Speech made pursuant to official job duties receives different treatment.

This doctrine illustrates why workplace speech law is more nuanced than simply asking whether the topic is political.

Can a Private Employer Be Bound by the Constitution?

Sometimes, but only in special circumstances.

Examples from constitutional doctrine have involved private entities performing functions deeply and exclusively associated with government or acting jointly with government officials.

Professional sports teams normally do not fit that description merely because they play in publicly financed facilities or receive local economic support.

The 2017–2018 Political Escalation

Anthem protests became even more controversial in 2017 after President Donald Trump publicly criticized players who protested and urged team owners to remove or discipline them.

This raised an interesting constitutional question distinct from direct team action: could government officials impermissibly pressure private companies to punish protected political viewpoints?

Government coercion of a private intermediary can create constitutional concerns in some circumstances.

But political criticism by an elected official does not automatically mean every later private decision becomes state action. The degree of coercion, threat, coordination and causation would matter.

Government Pressure on Private Speech Platforms

Modern First Amendment cases increasingly examine when governmental pressure turns ostensibly private moderation or employment decisions into constitutionally attributable action.

The principle is broader than football: government cannot evade constitutional limits simply by forcing a private party to do what government could not directly command.

But ordinary advocacy, persuasion or public criticism does not necessarily amount to legal coercion.

The NFL’s Anthem Policies Changed Over Time

The NFL’s policies and practices concerning the anthem changed during the controversy.

For a period, players generally were on the sideline for the anthem, though league guidance did not initially require standing.

In 2018, the NFL announced a policy under which personnel on the sideline were expected to stand, while those who did not wish to stand could remain in the locker room. The policy immediately generated labor and public controversy and was not implemented as a simple permanent solution.

The history illustrates why league policy must be understood alongside collective bargaining and changing institutional decisions.

Kaepernick’s Grievance

After becoming a free agent, Kaepernick alleged that NFL teams colluded to deny him employment because of his protest.

His claim proceeded through the league’s collective bargaining and grievance framework rather than as a straightforward First Amendment lawsuit against teams.

Kaepernick and former teammate Eric Reid later reached confidential settlements with the NFL.

The episode shows again that employment and labor mechanisms can matter even when constitutional claims against private teams are difficult.

Is Kneeling During the Anthem “Speech”?

Constitutional law recognizes that expressive conduct can communicate a message and sometimes qualify as protected speech.

Kneeling during an anthem is plainly intended to communicate an idea.

If government directly punished a private citizen for peaceful kneeling based on viewpoint, serious First Amendment questions would arise.

But when a private employer regulates an employee’s on-the-job expression, the state-action issue must be answered first.

Symbolic Speech

The Supreme Court has protected forms of symbolic expression in various contexts, including flag-related protest.

Cases such as Texas v. Johnson demonstrate that government generally cannot suppress expression simply because many people consider it offensive or disrespectful.

Again, those cases concern government restrictions, not ordinary private employment rules.

The Flag Code

The U.S. Flag Code contains guidance about displaying and respecting the flag.

Many provisions are advisory rather than criminally enforceable restrictions on private political expression.

The First Amendment prevents government from enforcing patriotic orthodoxy simply because officials or citizens dislike a protester’s message.

Patriotism and Constitutional Rights

People can reasonably disagree about whether kneeling during the anthem is respectful, effective or offensive.

Those cultural arguments are different from the legal question.

Constitutional rights do not depend on whether a majority approves of the message.

At the same time, private organizations can have contractual or business interests in regulating how employees represent the organization during work.

Free Speech Does Not Mean Freedom From All Consequences

A common phrase says, “The First Amendment protects speech, but not consequences.”

That phrase is only partly useful.

Government generally cannot impose prohibited consequences for protected speech. A private employer may sometimes impose workplace consequences, but labor contracts, anti-discrimination law, whistleblower law, state political-activity protections or other rules can still limit the employer.

The identity of the actor and legal source of protection matter.

Could Discipline Be Discriminatory?

Even when a private employer can regulate political expression, it must comply with applicable anti-discrimination laws.

For example, an employer cannot use a neutral-sounding conduct rule as a pretext for unlawful discrimination based on a protected characteristic.

Evidence that similarly situated employees are treated differently can sometimes become important.

Contract Rights vs. Constitutional Rights

Question	Likely Legal Framework
Government punishes citizen for peaceful political protest	First Amendment
Private NFL team disciplines player	Contract, CBA, labor law, state law; First Amendment only if state action exists
Public school disciplines teacher for citizen speech	Public-employee First Amendment doctrine
Workers act together over workplace conditions	Potential NLRA protected concerted activity
Employer discriminates based on protected status	Federal/state anti-discrimination law

Why Legal Analysis Must Separate the Issues

Political controversies often collapse multiple questions into one.

For an NFL protest dispute, ask separately:

Is the conduct expressive?
Who is restricting it?
Is that actor governmental?
What does the player contract say?
What does the collective bargaining agreement say?
Does labor law protect the activity?
Does state law provide additional employee protection?
Was government coercion involved?

Common Misconceptions

“Public Funding Means the Team Is Government”

Public financing of a stadium does not by itself convert every team decision into state action.

“The First Amendment Applies to Every Workplace”

It directly restrains government, not ordinary private employers.

“Private Employers Can Always Fire Anyone for Any Speech”

Contracts, labor law, state statutes, anti-discrimination law and other protections may apply.

“Political Speech Is Automatically Protected by Labor Law”

NLRA protection generally depends on concerted activity connected to employees’ mutual aid or protection.

“If a Protest Offends People, Government Can Ban It”

Offense alone is generally not a sufficient basis for government suppression of protected expression.

Why the NFL Debate Matters Beyond Sports

The anthem controversy illustrates broader questions facing modern workplaces:

Can employees express political views while representing a brand?
When does employer image outweigh employee expression?
How do collective rights differ from individual rights?
When does government pressure on private organizations become unconstitutional?
How should companies handle political disagreement among workers and customers?

Related MyArticles Government Resources

Conclusion

NFL anthem protests are political expression, but that fact alone does not create a First Amendment right against discipline by a private football team. The First Amendment generally restricts governmental action, and NFL teams are generally private employers.

The more relevant protections in a player-team dispute may come from employment contracts, the collective bargaining agreement, labor law, state law or other legal rules. A constitutional claim requires an additional showing that the challenged private conduct is legally attributable to the government.

This distinction is essential. Free speech law changes dramatically depending on whether the actor imposing the restriction is the government, a private employer or an employer acting under meaningful government coercion.

The NFL controversy therefore offers a useful lesson in constitutional law: before asking whether speech is protected, first ask protected from whom?