//  10/6/17  //  In-Depth Analysis

It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.

President Trump takes to Twitter to vent his anger at his critics with distressing regularity. In recent days, he and members of his administration have called for specific individuals – NFL players who take a knee during the national anthem; the ESPN anchor Jemele Hill – to be suspended or fired from their jobs. This symposium asks whether the First Amendment provides a defense against these attacks. That is an excellent (and complex) question, because in this scenario, as in many others, the courts are likely to be the last line of defense against Trump’s authoritarian impulses. But recent events also highlight a first line of defense: worker solidarity. Thus, this post discusses the First Amendment briefly, but then takes the discussion in a slightly different direction by discussing how collective action has proven an effective response to the President’s attempted interference with Hill’s and the players’ employment.

Numerous critics of the President’s responses to the NFL players and Jemele Hill have invoked the First Amendment. This isn’t surprising – when a public official attempts to stop private citizens from protesting, the First Amendment is a natural starting place. If anything, that instinct is probably stronger where a journalist (like Hill) is concerned, given the role of the institutional media in protecting our democracy. But, as others in this symposium have already pointed out, Trump is taking us into unchartered  First Amendment territory, and there is no bright line demarcating the point at which a public official goes too far in his attempts to influence a private employer’s personnel decisions.

While a bare presidential tweet calling for a consumer boycott of an employer is probably not enough to make that private employer into a state actor, more involved presidential meddling in private employment relationships could give rise to a First Amendment claim. Robert Post suggests some possible scenarios in his entry in this symposium; in addition, a government requirement that players stand for the anthem as a condition of advertising dollars or other subsidies could make state actors out of private employers. But any such claim would involve challenges, including developing a compelling factual record and wrestling with the novel legal questions. And in a sense, even a win might come too late: as Tindall and Berwick discuss in their opening post, others will be chilled when an employee loses his or her job for speaking out, and a multi-year federal litigation process – even one that ultimately succeeds – will do only so much to reinvigorate them. Couple these challenges with a federal bench made up of more of Trump’s judicial nominees, and you see the urgent need for more immediate employment protections.

Enter employees’ collective action, which has already figured prominently in both Hill’s and the players’ situations. Think Progress reported that ESPN attempted to send Jemele Hill home after she called Trump a white supremacist on Twitter – but that the suspension was cancelled when other hosts refused to replace her, and her co-host, Michael Smith, would not do their show alone. Assuming Think Progress’s account is correct, this chain of events evidently forced ESPN’s hand. There are only so many people who can step into Hill’s shoes on little notice; once they refused, the network had little choice but to bring Hill back.  

Second, as some others have pointed out, NFL players are represented by a union (the NFLPA) and their work-related conduct is governed by a collective bargaining agreement. While that agreement does not explicitly address players’ obligations during the national anthem, it does contain a list of offenses and sanctions. True, some of those offenses are fairly vague – for example, “conduct detrimental to the club.” But the players’ union would have the right to grieve a team’s imposition of discipline under this provision, and a neutral arbitrator would then get to assess whether kneeling during the national anthem was fairly encompassed within it. The CBA also sets out maximum fines for various offenses; given that the maximum fine for getting ejected from a game is $25,000, it seems extremely unlikely that any arbitrator would approve a team’s decision to fire a player for kneeling.

At least three other dynamics of the NFLPA’s representation make it unlikely that teams would even attempt to punish players for kneeling. First, the CBA requires that discipline be imposed “uniformly within a club on all players for the same offense.” In other words, teams may not make an example of supposed “ringleaders” in order to tamp down protest – discipline would be all or nothing, leaving teams in the position of imposing punishments of dubious legitimacy on many players at once. (And the fact that teams have not yet imposed discipline on kneeling players would make it difficult for them to start.) Second, Roger Groves points out that the CBA gives players significant power to decide what team to play for, which in turn gives owners a powerful incentive not to treat players capriciously. And finally, the players’ union has been vociferously supporting Colin Kaepernick and other protesting players; it recently recognized Kaepernick for his extensive charity work, and it produced this video contextualizing the history of athletes’ political protest. In the video, union leaders link the idea that players should shut up and do their jobs to “a contextual framework of slavery.” In addition to making its case to players and the public, the video makes clear that any team that is attempting to punish players for protesting would have a huge fight with the union on its hands. (For that reason, among others, the league may also decline Trump’s recent tweeted suggestion that it should impose an explicit rule that players must stand during the anthem – labor law dictates that the league would have to bargain over such a rule, and the NFLPA seems very unlikely to agree.)

One might wonder whether the same strategies would work for workers in less rarified environments – after all, television anchors and professional football players are probably uniquely difficult to replace, especially on short notice and with the country watching. But collective bargaining agreements in other industries routinely include “for cause” requirements for termination and discipline, which could protect unionized workers against employer attempts to suppress dissent. Further, the National Labor Relations Act protects employees’ rights to engage in concerted activity related to their working conditions, whether or not they are in a union. (For an argument that the NLRA protects players who take a knee even absent the collective bargaining agreement, see this post at OnLabor blog.)

Courts are not the only entities that defend free speech values. As Hill’s and NFL players’ situations illustrate, so can unions – alongside more obvious candidates, like the media. But unions, like many other groups, are under attack by the Trump administration; for example, early next month, the Solicitor General will argue that the Supreme Court should adopt a narrow view of the NLRA’s protection for collective action. We should view the administration’s anti-union positions with alarm, not just because they will leave workers less able to negotiate for better pay and working conditions, but also because they chip away at our democracy.


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