O say can you kneel? Free speech and football

By Andrew L. Seidel
Director of Strategic Response
Freedom From Religion Foundation

Freedom of speech is both a constitutional right and a core American value. As a constitutional right, it means the government cannot limit your right to speak.

Obviously, private employers aren’t the government. Private organizations can regulate the speech of employees and participants. This is bad news for those receiving tips at Cold Stone Creamery and has implications for the NFL players who choose not to stand during the national anthem. It’s also bad news for two students who were humiliatingly forced off their private, Christian football team, by their pastor coach for choosing to peacefully protest during the national anthem.

The government can regulate the conduct of its employees. In fact, the Constitution requires the government to regulate employee speech while they are on the clock—under the Establishment Clause government actors may not endorse religion while representing the government. Teachers in public schools don’t have a free speech right to preach to other people’s children because they are acting as government employees and bound by that clause.

But in most cases, the government cannot put speech demands on private citizens, including students in our public schools. The recent political push to force citizens to stand during the national anthem has bled into the public schools, where kids are beginning to emulate professional athletes and are becoming more politically aware as a result.

Piety and patriotism never mix well. Religion suffocates dissent, our Constitution enshrines it. Image via Shutterstock/Igor Stevanoic. Public schools, such as Parkway High School in Bossier Parish, La., are bound by the First Amendment’s Establishment and Free Speech Clauses. That means the school cannot punish a student for exercising his or her First Amendment rights, including the right to “take a knee” for the national anthem. (It’s nice to see the prayerful import of “take a knee” morph into something more secular and worthwhile.) If a school punishes such a student, it is violating the free speech clause of the U.S. Constitution. We’re looking at you, Parkway High.

The Supreme Court ruled more than 70 years ago in West Virginia State Board of Education v. Barnette that compelling a student to recite the pledge and salute the flag infringes upon a student’s First Amendment rights. The Barnette ruling was issued more than a decade before Congress divided “one nation, indivisible” by inserting “under God” into the then secular pledge. The court explained, in truly eloquent language, the limits on our government:

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.

Damn right. FFRF attorneys regularly quote this fine prose in our complaint letters. Those letters are often sent to protect nonreligious students who don’t want to stand for a pledge to one nation, under a god that they do not believe in.

The opposition to protests during the anthem will inevitably bleed into the public schools. This threatens nonreligious students who want to sit down for their rights and opt out of the pledge. If you or your child or a friend see this happen, please report it to FFRF legal using this web form. FFRF is here to protect the rights of these brave children.