San Francisco 49ers outside linebacker Eli Harold (58), quarterback Colin Kaepernick (7) and free safety Eric Reid (35) kneel in protest during the playing of the national anthem before a NFL game against the Arizona Cardinals in Santa Clara, California, Oct 6, 2016. Mandatory Credit: Kirby Lee-USA TODAY Sports/File Photo

In his first game playing for the Carolina Panthers, Eric Reid resumed protest during the national anthem, becoming the first player on the team to take a knee. It came as no surprise: Reid protested alongside former teammate Colin Kaepernick in 2016 when playing for the San Francisco 49ers. But despite prompting a nationwide debate in earlier seasons, The Washington Post notes that only a handful of NFL players continue the practice while commentary and buzz around what once dominated the headlines has largely subsided.  Does the First Amendment protect the players when they refuse to stand for the National Anthem?  And how does taking a knee fit into America’s history of political protest? We provide historical perspective in From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL ControversyFor news, analysis, history & legal background read on.


News & Updates

October 10, 2018: Coach Ron Riviera Reiterates Support For Reid

Speaking with reporters on a conference call in advance of an upcoming game, Coach Ron Riviera told reporters that he had no issue with Eric Reid’s protest during the anthem before last week’s game and that the decision to sign him on to the team was strictly about football.  “I believe in the First Amendment and that’s all he did. He exercised his First Amendment. As far as I’m concerned he’s an American citizen that’s entitled to exercise his rights,” Rivera said.

Washington Post> Sports Illustrated>

October 7, 2018: Eric Reid, Now With The Carolina Panthers, Resumes His Anthem Protests On The Field With Coach’s Support

Former Kaepernick teammate Eric Reid resumed kneeling in protest during the national anthem prior to playing his first game for the Carolina Panthers. He is the first member of the Panthers to “take a knee.” Coach Ron Riviera shied away from commenting in depth on Reid’s action when speaking with reporters after the game. “I’m not going to talk about a guy exercising his First Amendment rights,” he said. “What I’m going to talk about is the football game, because to me it’s about what happens on the football field.”

New York Times> Huffington Post>

October 4, 2018: NFL Protests Subside In 2018 Season As Players Turn To Other Methods Of Activism

Fewer NFL players have been protesting during the national anthem this season, while commentary and buzz around what once dominated the headlines has largely subsided.

The Washington Post>
August 10, 2018: More Anthem Protests During NFL Preseason 

Some NFL players have continued their anthem protests during the start of the 2018 preseason. A league spokesperson told news outlets in a statement that there would be no change in the national anthem policy, which requires all players and staff on the field to stand during the national anthem. President Trump, again, renewed his attack on the protesting players advocating for the unpaid suspension of players.

NPR> Washington Post>

July 20, 2018: NFL and NFL Players Association At A Standstill Over Anthem Rules; Trump Weighs In

The NFL and the NFL Players Association issued a joint statement saying that they will not issue or enforce rules relating to the anthem over the coming weeks while the two parties continue to hold discussions about how to address the issue.

The initial policy that was announced in May would allow the NFL to fine players who didn’t stand during the national anthem while on the field was challenged by a grievance by the players’ union. The NFLPA previously wrote in a statement  when they filed a grievance that the policy “is inconsistent with the collective bargaining agreement and infringes on player rights.”

President Trump tweeted alongside the resurfacing of the debate and suggested his own set of penalties for the league.

ESPN> NBC> NFLPA Statement>

June 4, 2018: Super Bowl Champions’ Visit To White House Canceled Over National Anthem Dispute

President Trump called off the White House celebration honoring the Philadelphia Eagles after almost all the players and coaches said they would boycott the visit due to the president’s demands that the NFL players stand for the National Anthem.

In a statement on Twitter, the Philadelphia Eagles said:

“It has been incredibly thrilling to celebrate our first Super Bowl Championship. Watching the entire Eagles community come together has been an inspiration. We are truly grateful for all the support we have received and we are looking forward to continuing our preparations for the 2018 season.”

 

Philadelphia Inquirer>New York Times> ESPN>

May 24, 2018: NFL Threatens Teams with Fines If Players Take a Knee on Field

After NFL Commissioner Roger Goodell announced that all players must stand for the national anthem in response to the “taking a knee” protests of last season, experts weighed in on the First Amendment implications of the rule. Erwin Chemerinsky, the dean of Berkeley Law and a constitutional law expert told The Washington Post that, “private employers can fire employees for their speech without having to worry about the First Amendment.” But Eugene Volokh, a professor at the University of California, Los Angeles, School of Law, stated that “a considerable amount of states including those that have NFL teams and stadiums do in fact have laws that bar private employers from retaliating against employees because of their political activity,” and so each team with protesting players would have to be looked at on a case by case basis. President Trump, who escalated the issue last season with his comments, approved the new rule stating, “You have to stand proudly for the National Anthem or you shouldn’t be playing. You shouldn’t be there. Maybe you shouldn’t be in the country.”

Washignton Post> Maxim> CNN> The Root>
February 1, 2018: Take a Knee Conference and Rally to Meet Outside Superbowl Stadium

Players will be closely watched on Sunday to see if any continue the Taking the Knee protests that have rocked the NFL this season. Meanwhile, a group of protestors is set to rally near the stadium with a march to the stadium planned as well. According to Sporting News, “among the attendees — some of whom will speak at the conference, while others will appear at the stadium demonstration — are families and friends of victims of police violence, in the Minneapolis area and from elsewhere.”

Sporting News>
January 10, 2018: NBC Will Air Superbowl Protests

Despite fans saying they will stay away from the Superbowl because of Taking the Knee protests, NBC says it will not shy away from covering protestors during the game.

Maxim>
January 10, 2018: New Yorker Cover
January 1, 2018: Did Taking the Knee Have Any Affect on the NFL in 2017?

The New York Times discusses the impact of NFL players protests as the season winds down.

New York Times>
December 17, 2017: A Look at Week 15 of Taking The Knee

Breitbart documents what stadiums look like as the NFL season nears its end and considers what effect Taking the Knee has had on the sport.

Breitbart>
November 26, 2017: NFL Looks to 2018 Season To Move Past Taking a Knee Woes

In a Week 12 wrap, Deadline writes that the usual players continued to protest even as the NFL is looking ahead to new rules in 2018 that would keep players off the field during the anthem. President Trump subsequently tweeted his displeasure.


Deadline>

November 13, 2017: GQ Names Colin Kaepernick “Citizen of the Year,” The Controversy Continues

Immediately after Colin Kaepernick was lauded on GQ’s cover for inspiring a movement, conservative commentators began mocking the decision.

GQ> IndyStar>
November 6, 2017: NFL Commissioner Ready to Move Beyond Protests

As week 10 begins, National Football League Commissioner Roger Goodell tells Bloomberg he is “proud of our players” but he is ready to focus on the game not protests.

Bloomberg>
November 3, 2017: NFL Players Insist Protests Do Not Disrespect Military

As the NFL prepares for Week 9 and its annual “Salute To Service” celebration, debate is heating up over whether kneeling for the anthem or taking a fist disrespects military personnel. On Wednesday, a disabled army veteran said he would boycott a New Orleans Saints game where he was to be honored because of the continuing protests.

New York Post> USAToday>
November 3: NFL Protests Are Hurting the Bottom Line

Data obtained by Sporting News reveals shrinking NFL game viewership which means less money for advertisers and complaints about lower product sales like at pizza company Papa John’s. Nielsen data shows “NFL game telecasts averaged 14.772 million viewers during the first eight weeks of the season…That figure is down 5 percent from 15.549 million viewers during the first half of the 2016 season and off 18.7 percent from 18.167 million viewers for the same period in 2015 — before former 49ers quarterback Colin Kaepernick inspired a debate about racial injustice by sitting, then taking a knee, during the national anthem.”

Sporting News>
October 29, 2017: Seattle Sees Largest Taking the Knee Protest to Date

In Seattle, nearly the entire Houston Texans team took a knee during the anthem in protest over owner Bob McNair calling members of the team “inmates” in remarks earlier this month. Several of the Seattle Seahawks, whom the Houston Texans were playing, also protested.

Deadline>
October 24, 2017: Who Protested, Where and Trump Administration Response

The Washington Post maps NFL protests – and the president’s related NFL tweets – to date from Week 1 to Week 7. The piece also links to ESPN’s original reporting of data. The leader of the protest pack: San Francisco 49ers.

Washington Post>
October 21, 2017: Kennesaw State University Cheerleaders and Students Protest Off the Field

Four KSU cheerleaders took a knee in the stadium tunnel during Saturday’s game, having been taken off the field during the anthem after several protested on the field on September 30th. Debate continues over whether the university violated their freedom of speech.

The Atlanta Journal-Constitution>
October 19, 2017: Trump Administration Starts Petition To Stop Take a Knee

President Trump and Vice President Mike Pence have emailed supporters to garner signatures to make it mandatory to stand for the national anthem.

The Root>
October 16, 2017: Taking the Knee Goes International

German players take the knee and state it is for racial equality.

The Root>
October 16, 2017: Colin Kaepernick Takes Fight to Arbitration

ESPN>
October 11, 2017: List of Protests at Colleges and High Schools

Taking the knee and other anthem protests are not limited to the NFL. Footballers at colleges and high schools are also taking a stand against racism – often suffering severe penalties like getting kicked off the team.

Complex>
October 11, 2017: First – Protests, Now – Real Change

The Undefeated’s Jason Reid writes that NFL owners pushback on players taking the knee, like Dallas Cowboys’ owner Jerry Jones threatening to bench players, may mean the tide has changed and it is time to “reframe the debate away from the field.” Miami’s Michael Thomas told The Undefeated that, “At this point, it’s not even about protesting and taking a knee anymore…We did that to raise awareness. We wanted to shed a light on the situation, especially for those people who thought that there are no problems going on in minority communities — African-American communities to be specific.”

The Undefeated>
October 10, 2017: President’s Call to Remove Tax Breaks for NFL—First Amendment Violation

President Trump’s call for Congress to change the tax treatment of the NFL in response to player protests would be a violation of the First Amendment, says legal scholar Eugene Volokh. In fact in 2015, the NFL gave up the tax exemption enjoyed by its league office. Commissioner Roger Goodell noted that the 32 teams pay tax on their revenue. However, the NFL enjoys a variety of tax breaks, including taxpayer subsidies and municipal bond funding for many stadiums.

Washington Post> The Hill> CNN>
October 9, 2017: NFL Players Pressured to Stop Kneeling

The Root reports that eight players and coaches contacted the publication to say that pressure is mounting to stop the pre-game protesting. While many may still want to express their dissatisfaction, fear is mounting in locker rooms across the country.

The Root>
October 9, 2017: Houston High School Student Suspended for Refusing to Stand for Pledge

India Landry, a senior at a Houston high school, was suspended when she refused to stand for the pledge of allegiance. Her family is suing the school district. “I don’t want to stand for something that doesn’t represent what I’m going through,” she told the Houston Chronicle.

Houston Chronicle>
October 8, 2017: Vice President Mike Pence walked out of the NFL game between the San Francisco 49ers and Indianapolis Colts

The Vice President said he “will not dignify any event that disrespects our soldiers, our Flag, or our National Anthem.” President Trump said he had instructed Pence to leave the stadium if any players kneeled.

NPR>
October 2, 2017: Number of NFL players protesting drops by considerable margin in Week 4

In Week 4 of the NFL’s season, 52 players knelt in protest during the national anthem; this is a decrease from the nearly 200 players that protested in Week 3. The 52 players who chose to kneel drew from seven teams — the San Francisco 49ers, the Miami Dolphins, the Buffalo Bills, the Seattle Seahawks, the Detroit Lions, the Oakland Raiders, and the New York Giants.

CBS Sports>
October 1, 2017: Texas Players at Private High School Kicked Off Team for Their Protest

At a private high school in Texas, a coach removed two of his players from the team after they took a knee during the National Anthem. The coach, Ronnie Ray Mitchem, said, “There is a proper time to do something in a proper way.”

6 ABC> New York Times>
October 1, 2017: High School Football Players in New Jersey Protected in Their Protest

Officials from Monroe High School did not discipline four high school football players who took a knee for the National Anthem. The athletic director told mycentraljersey.com that school policy recognizes that if a player decides to take a knee, “that’s his constitutional right.”

My Central Jersey>
September 29, 2017: Oakland Catcher Bruce Maxwell Breaks Baseball’s Politics Line

Football’s protests spread to Major League Baseball (MLB) when rookie Bruce Maxwell of the Oakland A’s kneeled during the National Anthem. Maxwell became the first baseball player to participate the wave of political protest that has engulfed the NFL.

ESPN>
September 28, 2017: Nearly three dozen high schools in Louisiana Require Players to Stand

The principal of Parkway High School in Louisiana sent a memo requiring student athletes to stand during the National Anthem, implementing a policy set by the Bossier Parish superintendent.

Huffington Post>
September 28, 2017: Trump on NFL owners: ‘I think they’re afraid of their players’

President Trump, in a Fox & Friends interview on September 28th, said that NFL owners are “afraid of their players.” Social media users and commentators suggested that these comments were racially-tinged, setting off a flurry of backlash.

CNN>
September 26, 2017: When Cheerleaders Take the Knee

Georgia Tech cheerleader, Raianna Brown, took a knee last year inspired by Colin Kaepernick’s protest. Since then other cheerleaders have followed but none have had their image go as viral as Brown.

Proudest & scariest moment as a yellow-jacket happened at the same time. Thank you @Kaepernick7 for inspiring to #TakeAKnee to take a stand pic.twitter.com/iJVqHEpWx0

— Issa Rai (@freeSPIRIT_5678) September 24, 2017

The Cut>
September 26, 2017: Sessions says free speech ‘under attack,’ but defends Trump’s NFL battle

Attorney General Jeff Sessions defended President Trump’s criticism of the NFL during a September 26th appearance at Georgetown. He stated that the “president has free speech rights, too.” He said that protests by players and team owners were a “big mistake.”

ABC News>

September 25, 2017: NFL Players, Coaches Protest National Anthem After Trump’s Attacks

As President Trump addressed an Alabama crowd on September 23rd, he said that NFL owners should respond to on-field protests by firing players for “disrespecting our country” and that owners should ”get that son of a bitch off the field.” The next day, waves of NFL players kneeled in protest during the National Anthem in games across the United States — a nod to former San Francisco 49ers quarterback Colin Kapernick’s September 2016 protest.

NPR>

History & Legal Cases

Bill Rhoden Discusses the History of  Black Athletes Taking a Stand

Taking a knee during the National Anthem is symbolic speech that has a long history in the United States. In fact, symbolic speech was one of the most effective means of political protest during the America’s founding period. The patriots used liberty trees, liberty poles, effigies, and the number “45” to attract attention and spread political dissent against Parliament and local British authorities. For historical perspective, read our discussion of symbolic speech in the founding period.

First Amendment Watch >

Does the First Amendment protect NFL players and high school athletes from discipline for their silent protests during the National Anthem? The free speech guarantees of the First Amendment shield people only against actions of the government or any of its instrumentalities. Since the NFL and the teams are private businesses, players cannot call on the protection of the First Amendment. However, there may be other defenses for players who protest. State employment laws may safeguard the political speech of employees under various circumstances, but protections are spotty. And bargaining agreements between employer and employees—in this situation the NFL Collective Bargaining Agreement—lay out the rights and responsibilities of parties to the contract. As for high school athletes and other students, those enrolled in public schools would enjoy First Amendment safeguards, but not their counterparts at private schools.

The issue of whether the government could coerce respect for national symbols was settled in 1943 in West Virginia Board of Education v. Barnette, 319 U.S. 624. The state required public school students to pledge allegiance and salute the flag, a practice that was challenged by Jehovah’s Witnesses after several children were expelled from schools.

The Court ruled that the flag salute is a form of symbolic expression and that “the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.” Compulsory affirmations of patriotism violated the freedom of speech. The Court said:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Oyez> Justia>

Analysis & Opinion

September 10, 2018: Why Have Players Stopped Kneeling? 

The Root examines some of the motivations behind the decline in protests on the field at the start of the 2018 season.

The Root>
June 13, 2018: Tracing The Heritage Of Protests Among African-American Athletes

Journalist Howard Bryant discusses protests among African-American athletes throughout history.

May 24, 2018: Twitter, the NFL and Free Speech

In light of the same day Trump/Twitter legal decision and the NFL announcement on anthem protests, Victoria Smith Ekstrand, UNC Media Law Professor, outlines what she sees as a troubling trend of First Amendment debates in a society that is increasingly relying on private platforms and interests for public debate. “Whether it’s the football field or the Twittersphere, our discussion about public matters no longer takes place on the street corners,” she writes. “The most vigorous public debate now takes place in privately-held spaces, such as social media and our entertainment media, like the NFL, where the First Amendment has less reach.”

The News and Observer>
December 7, 2017: Public School Athletes Should Also Be Allowed to Protest

The Ombudsman for the Newseum Institute First Amendment Center, David Hudson, writes that “The U.S. Supreme Court declared back on Flag Day in 1943 that public school students did not have to stand, salute the flag, and recite the Pledge of Allegiance in West Virginia Bd. of Educ. v. Barnette (1943).” He says that it is unfortunate that certain schools have targeted athletes who protest.

Newseum>
November 6, 2017: The New Yorker Takes A Satirical View of the NFL Protests

The New Yorker provides a different perspective in this week’s issue.

New Yorker>
October 26, 2017: Former NFL star Anquan Boldin on the Social Justice Goals of Protesting

The retired Super Bowler writes that it is important for athletes to use their platforms “to bring attention to our broken justice system.” He goes on to say, “These protesting players are using their platforms to make sure these issues are heard by the public, who have the power to push for change, and by officials, who have the power to make it.”

Time>
October 10, 2017: Is the NFL Really a Private Entity?

Anne Branigin of The Root argues that the NFL might not legally be considered a private entity (where the First Amendment does not apply), given its public subsidies of tax dollars for stadiums and other benefits. And she wrote that players could argue, under the NFL Collective Bargaining Agreement, that by taking a knee they “did nothing to erode the integrity or public confidence in the game.”

The Root>
October 3, 2017: Ta Nehisi-Coates on the Meaning of Civil Rights Protests

Ta-Nehisi Coates argues that the NFL players taking a knee look beyond any antagonism brought about by their actions, and compares them to civil rights activists of the previous generation. “Whatever symbols they embraced, civil-rights activists—much like black activists today—never successfully connected with the hearts of the majority of adults of their own day. . . But the activists did sketch a theater of violence, with men like Bull Connor in starring roles, that shamed and embarrassed the country. And . . . the activists were able to use that shame to affect meaningful change. Perhaps most importantly they affected the attitudes of the children of those white Americans who scorned them. This points to the true target, in terms of white people, of Kaepernick’s protest. The point is not to convince people who boo even when a team kneels before the anthem is sung. The point is to reach the children of those people. The point is the future.”

The Atlantic>
September 29, 2017: How Schools are Dealing With Students Right to Protest

Public schools in the United States are varied in their responses to on-field protests by student-athletes, thus presenting a series of often-conflicting First Amendment interpretations. NPR evaluates a Louisiana high school that threatened to suspend students as a matter of policy, in addition to reporting on reactions to such policies by National Association of Secondary School Principals.

NPR>
September 27, 2017: Do Trump’s NFL Attacks Violate the First Amendment?

Politico’s Robert Post explores the ways President Trump’s treatment of his critics poses First Amendment issues. Post looks at Bantam Books v. Rhode Island, a 1963 Supreme Court case, and analyzes the legal complications—for both citizens and the government—when a president responds with invective against dissenters. “If the president’s words are designed to trigger the legal suppression of citizen speech, he may likely be violating the First Amendment,” Post writes.

Politico>
September 26, 2017: Maybe Trump is Right About Players Not Taking a Knee 

John Hawkins writes in the National Review that “NFL players do have a right of free speech, but they don’t have a right to avoid criticism for engaging in that speech” and argues that the conservative point of view must get an airing on this issue.

National Review>

September 24, 2017: Can President Donald Trump Legally Command the NFL to Suspend, Fire Players?

Writer Michael McCann, who is Sports Illustrated’s legal analyst, looks at the limits of presidential speech to affect change in private corporations like the NFL. He specifically examines 18 U.S. Code § 227, a federal statute that forbids the President and all government officials from “wrongfully influencing a private entity’s employment decisions,” concluding that the statute is unlikely to apply in the NFL protests.

Sports Illustrated>
September 24, 2017: The NFL Won’t Forget September 24, 2017 Anytime Soon

Esquire offers an overview of how NFL players and team owners have responded to President Trump’s criticisms and the ways it has affected the league. He also discusses the fact of NFL owners responding to and actively commenting on politics, as was the case when Jacksonville Jaguars owner Shad Khan joined his team on the field in a September 24th protest.

Esquire>