Editor’s Note: The MULS Sports Law Society (SLS) Blog is pleased to welcome 1L Taylor Brisco as an NFL writer. Taylor, who is also an SLS member, earned her undergraduate degree from St. John’s University. Previously, Ms. Brisco served as an intern with SiriusXM NFL Radio. 

Late August marked the rise of a controversy due to a NFL player refusing to stand during the national anthem. San Francisco 49ers quarterback, Colin Kaepernick, sat down during the national anthem before a preseason game. Since Week 1, Kaepernick has kneeled during the national anthem to protest what he believes is racial injustice against African American people and minorities in the United States.

Now that Week 3 has concluded, players have joined Kaepernick in either refusing to stand, putting up a right fist to perhaps symbolize the Black Panther movement, or displaying other movements instead of the traditional standing with right hand over heart action during the national anthem. In fact, players from sixteen NFL teams were reported displaying some act different than the traditional stance. The effect of essentially protesting the national anthem has trickled over to other sports both professional and amateur.

<> on August 31, 2016 in San Francisco, California.

Kaepernick’s refusal to stand has sparked and continues to generate a great deal of controversy. Some supporting Kaepernick’s choice have agreed with his reasoning behind why he will not stand during the national anthem while others, not in favor of Kaepernick’s choice, feel as though Kaepernick either does not have the right to display any action other than the traditional stance. Or, some opponents of Kaepernick’s choice believe that he will is being disrespectful to active military and especially, military veterans that have fought and served to protect the United States.

Whatever “side” one may take, the question at hand is whether or not Kaepernick’s refusal to stand during the national anthem is unlawful.

First Amendment Analysis

Some people in the United States of America regard the First Amendment as simply the right to freedom of speech and religion. While that is true, according to the American Civil Liberties Union (ACLU), the First Amendment also protects “freedom of the press, right of the people [to] peace[fully] assemble, and to petition the Government for a redress of grievances.”

With that said, the First Amendment can be used to support Kaepernick’s choice in protesting the national anthem. Based on the law, Kaepernick has a legal right to peacefully assemble and state his reasons behind why he feels so strongly in protesting the national anthem.

The First Amendment Center serves to provide information regarding the First Amendment. The purpose of the First Amendment Center is to “the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.”

Although the First Amendment Center was created by journalists and serves as an educational tool, not for legal advice, it expands on the First Amendment’s use.The Center interprets the use of freedom of assembly and provides a definition for freedom of association:

Freedom of assembly is explicitly guaranteed in the First Amendment, securing the right of people to meet for any purpose connected with government. Freedom of association protects the activities and composition of such meetings.

This right is not explicitly set out in the Constitution but is instead derived from fundamental privacy interests and the rights of speech, petition and assembly.

Based on the First Amendment and definitions from the First Amendment Center, Colin Kaepernick’s protest is peaceful and protected by law. Although his choice in bringing awareness to the issues he has presented may not be favored by all people, he has the right to state how he feels and protest peacefully to get his message across.

In light of the recent fatal shootings of Keith Lamont Scott (Charlotte, North Carolina) and Terence Crutcher (Tulsa Oklahoma) by police officers, it can be inferred that Kaepernick and other athletes across the board will continue to protest racial injustice until significant changes are made.

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