Protest vs. Patriotism: Are NFL players allowed to protest the flag and anthem?

Protest vs. Patriotism: Are NFL players allowed to protest the flag and anthem?


Since then-San Francisco 49ers Quarterback Colin Kaepernick first sat on the bench in protest during the national anthem at an NFL game in the 2016 season, protesting the anthem has been a hot-button issue.

Kaepernick, who said he protested because black people are regularly shot and killed without justice, is no longer contracted with a team but is having a residual effect on the league. The issue rose again after President Trump brought it up at a rally in Alabama last week.

The most substantial example of protest in the league was last week’s Titans game in Nashville at which the Titans and Seattle Seahawks’ teams stayed in the locker room in response to President Trump’s remarks about NFL protests.

Undoubtedly, you’ve read or heard outrage from people who argue protesting the national anthem is unpatriotic or, like Trump, think the NFL should fire every “son of a b—-“ who protests. You’ve also likely heard equal support from people who are in favor of the protests and believe they are defended by the First Amendment.

So which is it?

Here, we’ll look at the federal and NFL rules and policies which dictate protest and flag use.

First, let’s define unpatriotic use of the flag:

This week’s resurgence comes after tweets from Trump about players “disrespecting” the flag.

The US Government actually has a whole code (title 36, code 10) that deals with flag protocol. In this code are many operative facts for this discussion:

-The code was created on June 14, 1923 (Flag Day) to make display of the flag uniform across the Army and Navy. Consequently, the procedures became the federal standard for all use f the stars and stripes.

-The code is not enforceable; the federal government cannot impose penalties for misuse of the flag.

-While section 176 of this code states “No disrespect should be shown to the flag of the United States of America,” being absent or seated during its presentation is not listed as a sign of disrespect. Many other common practices including using the flag on apparel, advertising and uniforms (subsections e, i and j) respectively are listed as violations of this code.

But what about NFL policy?

Since the beginning of this controversy, spectators have been arguing over what the actual NFL policies are for players. A popular tweet circulated the internet this week alleging that a rule for NFL players barred protest of the anthem.

The league players are guided by a rule book (mandatory rules for employees) and the player policy (suggested best practices).

While pages 62-63 of the policy state players should stand facing the flag, helmet in hand and refrain from talking during the anthem, the actually enforceable rule book, available here, does not contain the word “anthem.”

The only related mention of such conduct in the NFL rule book is in page 23 in the rules of personal messages which reads:

“Throughout the period on game-day that a player is visible to the stadium and television audience (including in pregame warm-ups, in the bench area, and during postgame interviews in the locker room or on the field), players are prohibited from wearing, displaying, or otherwise conveying personal messages either in writing or illustration, unless such message has been approved in advance by the League office. Items to celebrate anniversaries or memorable events, or to honor or commemorate individuals, such as helmet decals, and arm bands and jersey patches on players’ uniforms, are prohibited unless approved in advance by the League office.”

The official NFL rule book does not address any behavior that displays a personal message.

Last but certainly not least, what does the Constitution say?

Protesting the government is literally the reason we have the First Amendment of the Constitution.

The First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free excessive thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for the redress I’d grievances.”

While legally Americans are allowed to protest, private institutions can have censorship rules that do not violate the constitution. However, with the NFL’s lack of policy prohibiting such behavior and spokesmen speaking out this week to say they will not reprimand players or teams for protesting or not protesting the anthem, one thing is clear:

Regardless of whether or not they should, NFL players absolutely can protest the anthem.

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