So, maybe those who support the former 49ers quarterback and his protest against police brutality and racial inequality should consider how to get that message back on track. Try a new tactic with a real call-to-action.
What began as a player's silent dissent has morphed into a loud debate, pitting the NFL and team owners against players and their supporters. Even President Trump, who likes a good “kerfuffle,” has weighed in, making it about patriotism, saying to players who take a knee, "Maybe you shouldn’t be in the country.”
The new NFL owners’ rule has only escalated the divide by threatening to penalize players and teams if they don’t stand during the national anthem, or stay in the locker room while it’s playing.
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Yes, this is about free speech, and our country’s time-honored right to protest. That, too, is patriotism.
But it’s also about who’s in charge — Jerry Jones and team owners who employ the players and don’t want political protests to disrupt profits. Or the players — employees — who want to use their celebrity and what they believe to be their First Amendment rights to speak out about injustice.
We hate censorship. But the question of who is legally right about the new rule is murky.
Erwin Chemerinsky, the dean of Berkeley Law and a constitutional law expert told the Washington Post, First Amendment rights don't apply to private institutions. “Private employers can fire employees for their speech without having to worry about the First Amendment,” he said.
In an article written for Vox, Benjamin Sachs, a labor professor at Harvard Law School, said it comes down to the players' collective bargaining agreement with the NFL and whether the union should have been consulted.
“If, as the NFL Players Association says, the employer implemented this change on its own, the policy is flatly illegal for that reason and should be rescinded by the league,” Sachs writes.
The Players Association has said it will study the new policy to determine whether it violates its collective bargaining agreement with the NFL.
In the midst of the legal quandary, players who want to combat racial injustice by kneeling on the field are losing the PR battle. Members of the media may be in their corner, but their employers and a lot of fans no longer hear their message, if they ever did. Veterans in particular believe kneeling during the national anthem shows unforgivable disrespect.
Protesters will get more traction for their movement if it becomes one. If it expands to include the public and other high profile supporters. And if it has a tangible goal like changing a specific law or law enforcement practice. Where exactly do the NFL protesters want to go with this?
Think the #MeToo movement and its effort to identify and punish harassers. Or the Parkland students who’ve ignited a call across the country for greater gun control.
It’s time for this protest to evolve if it’s going to be effective. Tell us what you want. Take it beyond the field; get the fans in the stands and our communities involved; get policy makers’ attention.
If this is about ending racial injustice, make it a movement, or watch it fizzle.