Free Speech Rights: Public Employees v. Football Players
“[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (citation omitted).
Nearly every brief filed in Janus v. AFSCME advocating for the Supreme Court to invalidate as unconstitutional union fair share dues, including the Petitioner and Trump Administration’s briefs, centers this quotation and sentiment. These briefs argue that the essence of democracy hangs on the right and ability of citizens to freely express their own individual political beliefs in the marketplace of ideas. Their deepest concern is that required fair share dues compel public sector workers to subsidize political speech. The government’s brief deems this a “severe burden” on workers’ constitutional rights.
While we don’t share the view that the effect of fair share dues is to compel speech, we don’t disagree that free speech is essential to democracy and that employer coercion of worker speech is detrimental to democracy. (Indeed, a new book by Alexander Hertl-Fernandez of Columbia University argues that this is a growing problem in the American workplace.) That’s one reason why we’re troubled by the NFL’s new policy punishing taking a knee during the national anthem. As Ben recently argued in Vox, the NFL policy raises serious free speech concerns and should violate the First Amendment. President Trump and Vice President Pence actively encouraged adoption of the ban on anthem protests; NFL owners have even stated that the ban was “initiated” by the President’s interventions. The ban is exactly the kind of coercion and subsidization of political speech that Janus supporters should be howling about. Yet, as several OnLabor readers have pointed out (here and here), Janus supporters have been curiously silent about the free speech rights of NFL players. This silence raises the question of how strongly and under what circumstances Janus supporters believe their own argument.
The NFL players in a very real and direct way are being forced to support publicly the political views of their employers at the behest of the government. The rule forces players to abandon expression of their own strongly held beliefs about racism, police violence, solidarity among NFL players, and the meaning of patriotism. Moreover, by making them stand during the anthem, the rule is meant to force the players to adopt, as Ben put it, “a particular vision of patriotism.”
The Supreme Court has warned against the danger of government-imposed patriotic orthodoxy. In finding unconstitutional a law that required school children to salute the flag and recite the Pledge of Allegiance, Justice Jackson wrote for the majority in West Virginia State Board of Education v. Barnette: “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.” Janus himself relies upon this case to assert that “political collectivization is antithetical to the First Amendment, which exists to protect individual speech and association rights from majority rule.” Thus, the NFL policy’s constraints on players’ conduct during the national anthem arguably infringe on players’ First Amendment rights: players are not only restricted in their ability to express their own messages by the NFL as a result of the league’s acquiescence to the Trump administration’s pressure but further are coerced into adopting the NFL and the current Administration’s message that patriotism means standing during the anthem. But Janus and his supporters don’t seem to mind this quite literal example of political collectivization.
Because they’re challenging a fee, Janus and his supporters sometimes state their objections to coerced worker speech in economic terms. They express outrage that public sector workers are compelled to actually “subsidize” union speech. As Janus’s brief puts it: “The First Amendment guarantees ‘each person’ the right to ‘decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.’ Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l Inc., 133 S. Ct. 2321, 2327 (2013) (citation omitted). That right is infringed upon if the government requires an individual to subsidize speech without his or her consent.” The Trump Administration made this point the crux of their justification for abandoning the Obama Administration’s position in support of agency fees’ constitutionality. “[T]he government’s previous briefs,” the Trump Administration wrote, “gave insufficient weight to the First Amendment interest of public employees in declining to fund speech on contested matters of public policy.”
Although no money literally changes hands, the NFL policy can be understood to compel players to subsidize their employers’ political views in a very significant way. NFL players’ public personae have tremendous financial value. Companies pay millions of dollars to use players’ images publicly — often just for a few minutes during an ad — in association with their products. Consider the Manning brothers: in 2015, they made more than $20 million combined in product endorsements. By standing during the national anthem, NFL players are lending the same kind of “product endorsement” to the owners’ brand of patriotism. It takes about one and a half minutes to sing the national anthem. When Peyton Manning said during an on-camera interview after the Super Bowl in 2016 that he planned “to drink a lot of Budweiser” to celebrate his victory, those few seconds of his time and image were estimated to be worth more than $3 million. At that rate, the value of his standing during the national anthem would be tens of millions of dollars. Again, Janus supporters outraged about compelled worker speech should be objecting but instead have been silent.
A Supreme Court decision for Janus would undoubtedly endorse the briefs’ sweeping statements about workers’ freedom to express their political views free from government and employer coercion. If they really care about the First Amendment, those who embrace such a decision should be willing to fight for the free expression rights of all workers — from Mark Janus to Colin Kaepernick. We’ll tune in to see if when the first knee goes down on the football field, Janus supporters step up.