The latest controversy in sports is the decision of some players to kneel instead of stand during the national anthem. Colin Kaepernick led the way when he decided not to stand for the anthem. He did not want to “show pride in a flag for a country that oppresses black people and people of color.” Kaepernick’s actions were followed by female soccer star Megan Rapinoe who also kneeled down during the national anthem. Rapinoe states, “I am disgusted with the way he [Kaepernick] was treated… we need a more substantive conversation around race relations and the way people of color are treated.” In light of these actions, U.S. World Cup of Hockey coach John Tortorella, as a preventative measure, advised “if any of my players sit on the bench for the national anthem, they will sit there the rest of the game.” Can coach Tortorella really do that?
Most know or at least have a general awareness of the First Amendment right to protest and free speech. So naturally one would think Tortorella cannot penalize his players for exercising their fundamental right to free speech right? Not exactly. The right to freedom of speech is a fundamental and cherished right, yet it is not absolute. The First Amendment protects speech that is relating to any matter of political, social, or other concern to the community. Federal free speech protections however only apply to the government therefore; it does not apply to private employers. Private employers generally have expansive leeway in regulating or prohibiting any category of unprotected speech or expressive conduct. Employers want to strike a balance between what an employee can and cannot say in the workplace for legitimate interest of the employer to promote harmony and the effective operation of its workplace. That being said, the only constraints holding back an employer from regulating unprotected speech is if the policies are overly burdensome then it will yield unhappy and unmotivated employees.
Is the act of kneeling or sitting during the national anthem a protected form of expression that relates to a political, social or community concern? Most would say yes, the players taking a knee is an expression of recent racial community concerns. However, when considering the private sector, courts have consistently held that private employers can significantly curtail employee free speech rights. For example, in the case of Schumann v. Dianon Sys., an employee was not entitled to free-speech protection, where the speech was disruptive to his employment, interfered with his job performance, strained his relationship with his supervisor, created division and was insubordinate. One could argue that since coach Tortorella has instructed his players to stand for the anthem, not doing so could create division and is an insubordinate act.
On the other hand, if taking a knee during the national anthem may be considered a public concern, it may be protected and be a form of speech that should not be regulated by a private employer. A good example of this is in Novosel v. Nationwide Ins. Co., in which the court found a violation of public policy where an employer terminated an employee for refusing to participate in the employer’s political activities. If the players are being penalized simply because they are expressing a belief different from the employer’s, then the act of kneeling may be protected. The critical distinction between Schumann and Novosel, is that speech relating to matters of public concern may be subject to protection, while speech concerning exclusively private matters, even matters relating to employment, may not.
The bottom line is this, a violation of an employee’s freedom of speech in the private sector is a difficult claim to back up. While it is understandable as to why coach Tortorella would want his players to stand for the national anthem, after all they are representing the United States, if Tortorella were to really impose the penalty of benching the player for a game, it may give rise to a law suit. However, since the penalty is to just sit out that game and not be terminated, then the harm done may not be enough to substantiate a claim.