Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.
Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”
The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.