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New NFL Anthem Policy A Close Call Under First Amendment

June 4, 2018Article
Law360

Law360 (June 4, 2018, 6:18 PM EDT) -- Private-sector employees have not typically enjoyed a right to free speech at the workplace, but National Football League players who try to challenge the league's new policy requiring them to stand during the national anthem may have a legitimate basis to seek First Amendment protection for their right to protest racial injustice, experts say.

The new policy seeks to quell a wave of protests started in 2016 when former San Francisco 49ers quarterback Colin Kaepernick started kneeling during the national anthem to bring attention to the mistreatment of African Americans by police. The protests quickly became a hot-button political issue, exacerbated by a series of public statements by U.S. President Donald Trump attacking the protesting players.

“They are basically saying we are allowing speech that is pro-patriotism and pro-American flag and refusing to allow speech that is critical of — however you want to deem it — critical of the United States, critical of the flag, of the anthem, or whatever it is,” said Ricardo P. Cestero of Greenberg Glusker Fields Claman & Machtinger LLP. “I think that would be a clear violation of the First Amendment, but you have to get over” the procedural hurdles.

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