Ever since the NFL season started, there’s been constant discussion about the decision of certain players not to stand during the national anthem and presentation of the flag before games. This talk reached a fever pitch last week after President Trump, during an Alabama rally, referred to the players who refuse to stand as “son[s] of bitch[es].” Detractors of the president and supporters of the players protesting the anthem are attempting to frame national discourse over the issue as a matter of the First Amendment. They, of course, are correct, but perhaps not in the way they might expect.
The right to protest is fundamental. The First Amendment protects this right against government intrusion. However, per years of dicta, the First Amendment does not constrain nongovernment employers from terminating employees for acts of protest. Regardless of whether you agree or disagree with the NFL players protesting during the national anthem, it must be agreed that while they have the right to do so without facing adverse government actions, they are not immune from adverse employer actions. That reality is exactly what President Trump reflected in his Alabama speech.
In the speech, Trump said:
Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, “Get that son of a bitch off the field right now. Out. He’s fired. He’s fired!” You know, some owner is going to do that. He’s going to say, “That guy that disrespects our flag, he’s fired.” And that owner, they don’t know it. They don’t know it. They’ll be the most popular person, for a week. They’ll be the most popular person in this country.
Trump exercised his First Amendment right in expressing disapproval of the NFL players’ disrespect. He did not threaten government action. He merely stated he would personally prefer to see an NFL employer terminate an NFL employee for disrespecting the flag and national anthem.
The First Amendment problem comes from the response. Congressman Al Green of Texas believes Trump’s NFL comment is an impeachable offense. He announced on the floor of the House that he will bring impeachment to a vote. Representative Maxine Waters, who has advocated for Trump’s impeachment mere days after he took office, also believes the president’s comment merits impeachment. This action is the true First Amendment violation. The President, just like everyone else, has a First Amendment right to express his opinion. Congress does not have the right to impeach him for it. To do so would set a dangerous precedent, and more importantly, it would violate First Amendment rights; the very right supporters of the protesting NFL players claim to uphold.