Wednesday, October 18, 2017
Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark.
The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.
First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.
Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.
Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.