The First Amendment: little protection on the sports field, or in boardroom.

The First Amendment is often cited and frequently misunderstood. More specifically the free speech clause of the same is raised as some sort of supernatural shield against all adverse actions to the speaker.  Take for instance the cases of U.S. women’s soccer team goalkeeper Hope Solo and the NFL’s Colin Kaepernick. Solo “called Sweden ‘cowards’ following the U.S.’s loss in the Olympic quarterfinals last month.”[1]  She was suspended for six months, and her contract was terminated with the national team.[2] Colin Kaepernick, third-string quarterback for the San Francisco 49ers, “refused to stand for the national anthem in protest over recent police violence.” Kaepernick was not sanctioned but instead lauded by many including President Obama as “simply exercising his constitutional right to make a statement about social issues.”[3] Boiled down, one athlete speaks in a way that could be insulting and is punished, the other acts and is in a way that could be as insulting, and is praised as being a first amendment warrior[4].

Neither Solo or Kaepernick is in a situation to use the First Amendment either as a sword or a shield.  The First Amendment only protects the speaker from certain types of government censorship. This is an incredibly important distinction. There were no police rushing in to arrest or intimidate either party (ironic in Kaepernick’s case), nor were government tickets or citations issued. Again, “[t]he First Amendment applies to government restrictions on speech, but doesn’t prohibit action by private employers” in fact “what [the First Amendment] doesn’t do is give people the right to say whatever they want and expect to be free of sanction.”[5] But, employers are not free to punish indiscriminately even though they have significant leeway.  To this end, “[p]rivate employers can generally create rules limiting workplace speech as long as the purpose is not discriminatory or in retaliation for reporting improper acts on the part of the employer.”[6]

In any event, Solo’s sanctions do not run afoul of the First Amendment, and if Kaepernick were to suffer a similar fate, the legal conclusion would likely be similar. I hope Mr. Kaepernick remembers this when he is likely cut from the roster.[7]

--By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See: http://www.starsandstripesfc.com/2016/9/5/12736034/u-s-soccer-did-a-big-thing-badly-by-suspending-hope-solo

[2] See: https://www.washingtonpost.com/news/early-lead/wp/2016/09/03/hope-solo-attributes-u-s-soccer-suspension-to-her-fight-for-equal-pay/

[3] See: http://abc30.com/society/fresno-state-football-coach-sounds-off-on-kaepernick-controversy/1499449/

[4] Expression and speech are often comingled and are protected similarly under the Free Speech clause.

[5] See: http://www.omaha.com/money/are-you-free-to-speak-why-the-first-amendment-probably/article_fa67e7e1-b345-5906-aaf7-b0f814cdd6fa.html

[6] Ibid.

[7] See: http://profootballtalk.nbcsports.com/2016/08/28/report-49ers-likely-to-jettison-kaepernick-for-football-reasons/