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Paul Callan: Pundits and others who say First Amendment gives NFL players "legal right" to protest are wrong on the law

Callan: As an attorney, I could be held in contempt if I interrupted my presentation to a judge to protest racial injustice by kneeling

Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.

CNN  — 

The painful debate about the causes and cures for racial injustice in America flares periodically to capture the nation’s attention. It did again over the weekend when many NFL players locked arms or knelt in protest during the playing of the National Anthem at football games across the country.

The protests were triggered by President Donald Trump’s comments at an Alabama rally on Friday and subsequent tweets challenging the patriotism of athletes who kneel during the playing of the anthem. He suggested that these “son of a *****” athletes had dishonored the flag and deserve to be fired by their NFL employers. On Monday the President defended his attacks, even after team owners issued their own angry responses to his temper tantrum.

This conflict has stirred impassioned debate around the nation about larger questions: the right to protest peacefully in a manner that many Americans, nonetheless, perceive as a form of disrespect for the flag or our troops, and the concern held by many that our President was focused on a few protesting football players instead of on the North Korean crisis, health care or Puerto Rico’s recovery in the aftermath of Hurricane Maria.

One often-heard, but inaccurate, refrain among the talking heads was that the athletes had a “legal right” to peacefully protest in football stadiums across the country because the US Constitution guarantees freedom of speech. “It’s a free country” this line of thinking goes, and American soldiers have fought and lost their lives to preserve this sacred right.

The fact is, these athletes do not have the “right” to protest at football games unless their employers consent to the conduct. Their private employers have a legal right under the US Constitution to fire or suspend players who engage in acts of protest on the field during the playing of the National Anthem and the display of Old Glory. Imagine what would happen if some of the TV anchors or commentators decided to “take a knee” during their shows in an act of protest.

My bet is that in most places they would be fired or suspended – as would protesting bank tellers, store clerks, security guards, restaurant workers or anyone else with a job to do. As an attorney, I would likely be held in contempt of court if I interrupted my presentation to a judge to protest racial injustice in America by kneeling.

Yes, America is a “free country,” whose citizens enjoy greater liberty and “freedom of speech” than any place on Earth, but even here there are limitations to these rights. The courts have repeatedly affirmed restrictions on time and place in the legitimate exercise of our Constitutional rights. Try shouting your opposition to the Trump administration during a Broadway show and see what happens. You’ll have to ask a friend how the show ended. You can explain your inaccurate concept of free speech as the usher throws you out of the theater.

The First Amendment of the US Constitution outlines both the extent and limitation of our most important rights. It states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”

Notice the words “Congress shall make no law…” The Founding Fathers made no mention of restricting the right of the National Football League or any other private employer to “prohibit” or “abridge” the freedom of speech. Colin Kaepernick should please take notice of the wording the next time he claims that his right to protest was violated when no team would sign him after he became a free agent. He had no “on the field” free speech rights under the Constitution. Perhaps he should consider registering to vote if he really wants to change public policy.

The First Amendment restricts only the government from abridging “the freedom of speech.” Private employers can do as they please. Thus, kneeling during the National Anthem can never be legally prohibited by the government, but can always be prohibited by private employers.

NFL owners have so far made no attempt to create a league-wide rule on the matter of these protests. Much will undoubtedly depend on how the controversy affects ticket sales and whether the President continues to stir the pot with early morning tweets.

A Reuters poll conducted last year when Kaepernick’s protest methodology was a hot topic suggested that 72% of Americans viewed Colin Kaepernick’s protest actions as “unpatriotic,” despite his stated rationale. The same poll, however, concluded that only 40% of minorities disagreed with the Kaepernick’s form of protest, suggesting a big racial divide on the issue – and potentially among sports fans as well.

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    Whichever side of the issue is a winner for sports fans, they should be clear about one thing. America may be a “free country” but the Constitution takes no position on the actions of professional athletes staging protests on the field. The matter of cheering them, booing them or firing them has been left entirely in the hands of the fans and team owners. Unlike our current President, the Founding Fathers, apparently, had more important matters on their minds.