Yesterday, after Roseanne Barr tweeted a racist statement about former Obama advisor Valerie Jarrett, comparing her to an ape, ABC cancelled the comedian’s newly rebooted sitcom, Roseanne. In the wake of that announcement, many took to social media to preemptively scold those on the Right who might criticize the network’s decision, even though those same commentators supported the NFL’s recent decision to prohibit silent protest before football games. “For mad conservatives who feel like Roseanne should be able to tweet what she wants and keep her show ‘because: first amendment’…” wrote journalist Jarrett Hill. “Where were you when Black men wanted to be able to take a knee and not be reprimanded for it by the NFL?”
So how should we think about the similarities and differences between the NFL’s decision to forbid football players to kneel during the National Anthem and ABC’s decision to cancel the show Roseanne because of Roseanne Barr’s racist tweet? Are the free speech issues in these two situations the same or different?
The first thing to make clear is that neither of these incidents raises a First Amendment issue. The guarantees of the Constitution, including the “freedom of speech,” limit only the government. They do not limit private individuals or institutions. Thus, although the federal government, the state of Pennsylvania, and the city of Chicago can violate the First Amendment, neither the NFL nor ABC can do so.
There is an interesting twist in the NFL situation because of President Trump’s condemnation of football players who kneel during the National Anthem and his call last September for the NFL owners to say “Get that son of a bitch off the field right now, out, he’s fired.” One might argue that Trump’s intervention constitutes government action in this situation, which implicates the First Amendment. But that probably reads too much into things, because Trump did not himself enact the NFL policy and because public officials routinely express their views about the merits of all sorts of private speech.
So, putting that aside, how should we think about the two situations? One way to approach this question is to ask what the First Amendment would require if it was in fact the government that took these actions. Suppose the government prosecuted both a football player for kneeling during the National Anthem and Roseanne Barr for her tweet. Would such prosecutions violate the First Amendment?
Both kneeling during the National Anthem as a symbolic protest and tweeting in a racially offensive manner are protected speech within the meaning of the First Amendment. In short, both of these hypothetical criminal prosecutions would be unconstitutional.
With respect to refusing to stand during the National Anthem, the Supreme Court made clear in 1943, at the height of World War II, that public schools could not constitutionally compel students to pledge allegiance to the flag. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” wrote Justice Robert Jackson in his opinion for the Court in West Virginia Board of Education v. Barnette.
Similarly, in a series of decisions, the Supreme Court has held that government cannot constitutionally prohibit the “desecration” of the American flag. In Texas v. Johnson, for example, decided in 1989, the defendant was prosecuted for burning an American flag as part of a protest at the 1984 Republican National Convention. The Court held that his act of symbolic protest was protected by the Constitution. “[If] there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” wrote Justice William J. Brennan, Jr. “[Nothing] in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct related to it.”
In light of these decisions, there can be no doubt that the government cannot constitutionally prohibit individuals from kneeling during the National Anthem.
Similarly, and for similar reasons, there can be no doubt that the government cannot constitutionally punish Roseanne Barr for her racially offensive tweet. Although Barr’s tweet was hateful and offensive (even Sean Hannity and Bill O’Reilly have said as much), the Supreme Court has made crystal clear over the past half-century that there is no such thing as constitutionally unprotected “hate speech” under the First Amendment.
In past decisions, for example, the Court has held that the government cannot prohibit racist speech at a meeting of the Ku Klux Klan, it cannot forbid the burning of a cross as an expression of racial hatred, and it cannot punish homophobic expression in public discourse. Indeed, last spring, in Matal v. Tam, the Court unanimously held that the First Amendment protects so-called “hate speech,” noting that “[s]peech that demeans of the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”
In short, then, neither kneeling during the National Anthem nor sending out racist tweets can be forbidden by the government. Although both actions may be deeply upsetting to different people, the First Amendment protects both forms of speech equally.
There is, however, another complication, for in these situations it is an employer who is taking action against its employees. Does the employment relationship change things? To stay with the First Amendment issue, suppose, for example, that a public university like the University of Wisconsin ordered its football coaches not to kneel during the National Anthem, and suppose that a government-run television station took a show off the air because its main character made a racially offensive tweet. Would either or both on those actions violate the First Amendment?
As the Supreme Court has long recognized, the employment relationship does change things. Fifty years ago, the Court made clear in Pickering v. Board of Education that although public employees do not automatically surrender their constitutional rights upon accepting public employment, “it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Thus, “the problem in any case is to arrive at a balance between the interest of [the employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Translation: although citizens generally have a First-Amendment right to make racist statements, a public school teacher who makes such statements to her students, or a police officer who makes such statements to community members, presumably can be disciplined for doing so because such speech clearly impairs their ability to do their jobs.
How, then, should we think about the college football coach who kneels during the National Anthem and the public television star who tweets racist comments? Even though the government cannot constitutionally punish private individuals for engaging in such speech, can it discipline its employees for doing so? Suppose it can show that, as a result of such behavior, fans won’t attend their games and that viewership of the show dwindles? In such circumstances, can the government-employer forbid such speech by its employees? Is there a principled way to distinguish the two cases?
Of course, to return to where we began, the two real-world cases do not directly involve the First Amendment. The respective employers are therefore under no constitutional obligation to permit either the kneeling or the tweets. But is there any principled way to distinguish the two cases – other than the fact that some of us might find one form of speech more offensive than the other? If we apply the central principles of the First Amendment to our thinking about issues of policy, it won’t be all that easy to treat one situation differently from the other.
In the end, though, private entities like the NFL and ABC are not required to act in conformity with the central principles of the First Amendment, and if they choose not to do so they can pretty much decide to discipline their employees for their political views whenever they think it serves their moral, economic, or political interests.