The Responsibility of a Public Platform

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. - The First Amendment to the Constitution of the United States of America, 1791

Take note of the first five words of the 1^st Amendment, “Congress shall make no law...” Keep them firmly in mind.

This is not only about being wrong, but being arrogantly wrong, as was Tre Wingo today on ESPN's when he introduced the controversy arising from Colin Kaepernick's political demonstration at his employer's place of employment, and in his employer's uniform. Wingo introduced the segment on the show today, by saying, “Let's get one thing out of the way, Colin Kaepernick had every right to do what he did over the weekend, and anyone who does not accept that does not understand the Constitution of the United States, Freedom of Speech, or Democracy.”

The NFL's 49'ers issued a statement saying “..we recognize the right of an individual to choose to participate, or not, in our celebration of the national anthem...” In so doing they (probably with no idea) made a new statement of policy for themselves and their employees, at least as far as public demonstrations at the place of employment is concerned.

Both the 49'ers and Wingo seem to believe that the 1^st Amendment grants an “unfettered right” to say anything or act in any way without regard for your employer's right to employ you...or not, as does a large number of the public. For proof that they should know better one needs look no further than the league's ability to prescribe the uniform to be worn and to fine anyone who might put an “unauthorized” patch or statement on it. I am not sure how they blithely say they recognize the right to demonstrate in disrespect for our flag and anthem at the same time they so righteously defend the sanctity of a football jersey...but perhaps that's a who other discussion.

Although there have been some expansions of meaning, largely by their extension to the “several states” and to public institutions that have some association to the federal government (like taking money), the first ten Amendments to the Constitution (the “Bill of Rights”) do not generally apply to the daily lives of private individuals, nor to the conduct of entirely private organizations, but rather to what the federal government may and may not legislate...or “do.”

Jeannette Cox is a professor of law at the University of Dayton School of Law. She specializes in disability law and employment discrimination law. On the web site of the American Bar Association, she writes:

“Can your boss fire you for expressing your views on social policy, participating in a political party, or donating money to an unpopular political cause? Polls indicate that many Americans believe the answer is no. After all, the right to free speech is among our most deeply ingrained civic values. We repeat, and cherish, the aphorism: 'I can say what I like. It’s a free country.' 

“In reality, however, American employees’ free speech rights may be more accurately summarized by this paraphrase of a 1891 statement by Oliver Wendell Holmes, Jr.: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” In other words: to keep your job, you often can’t say what you like. 

“If this use of economic power to punish speech sounds un-American, remember that the First Amendment limits only the government’s ability to suppress speech. It provides that “Congress shall make no law . . . abridging the freedom of speech.” Courts have extended this prohibition to all federal, state, and local government officials but have consistently emphasized that the First Amendment’s strictures do not apply to private-sector employers. Accordingly, the only people who enjoy First Amendment protection vis-à-vis their employers are people employed by the government.”

I accept that many don't understand this, given that the usual description of the exception is the old chestnut about yelling fire in a theater, leaving the impression that you have the right to say anything short of that, and say it anywhere other than that fictional theater. What is tiresome is the all-too-often pronouncement “rightness” immediately before saying something stupid. The Responsibility of a Public Platform? Know what it is you are hired to know and stick to it. Wingo should abjure constitutional commentary and stick to football.