Can an Employer Force an Employee to Stand for the National Anthem?

October 11, 2016 | Charles Bowen

kaepernick.jpgAnyone who pays attention to the mainstream news has likely heard about NFL player Colin Kaepernick’s refusal to stand for the national anthem before games. Kaepernick is a quarterback for the San Francisco 49ers and has chosen to sit or kneel as the Star Spangled Banner is played rather than stand.

His refusal to stand is in protest of recent police shootings of black citizens. As he puts it, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”

Naturally, many moral and legal questions arise when someone in the public domain decides to enact this sort of protest. One of the first is whether his employer has the right to force him to stand, or if he is merely exercising his First Amendment rights by taking a knee.


Expected Backlash

As with any action that deals with the national anthem or national pride, there has been a backlash from many fans and law enforcement officials. Police in Miami initially refused to escort Dolphins players onto the field if they refused to stand for the anthem, and Dallas Cowboys owner Jerry Jones personally entered the locker room before their game on 9/11 and informed his players they had better be standing with hand over hearts when the anthem was played.

Jeffery Bell, president of the International Union of Police Associations Local 6020, told the Miami Herald, “I respect their right to have freedom of speech. However, in certain organizations and certain jobs, you give up that right of your freedom of speech temporarily while you serve that job or while you play in an NFL game.”


The 49ers Reaction

The leadership of the San Francisco 49ers decided not to attempt to force Kaepernick to stand, claiming he has the right to personally choose whether to participate in the pregame ritual or not. Many observers have pointed to Kaepernick’s First Amendment right to free expression as the basis of the “should he or shouldn’t he” argument, but the legal reality is not that simple.


The First Amendment in Private Organizations

Legally speaking, any employee working for a private organization does not have the right to claim First Amendment freedom of expression while at work. The First Amendment applies solely to protection from government interference, not private companies. In other words, Congress could not pass a law requiring that people must stand for the national anthem, as that would infringe upon the First Amendment. The San Francisco 49ers, however, are a private organization and Colin Kaepernick is one of its employees.  Technically, while Mr. Kaepernick is at work, he does not have the absolute legal right to participate in this protest. His employer would have the right to take action against him should it elect to do so. In reality, they can’t physically force him to stand, but they can take the kind of disciplinary action that any other private company might take with one of its employees performing a similar action.


Will Any Action Be Taken?

Just because the 49ers could take action doesn’t mean they will. The 49ers are keenly aware of the media interest generated by Kaepernick’s protest and they wisely do not want to be seen as averse to his cause. That’s not to say they will stand idly by if Kaepernick’s protests became more demonstrative or dangerous or caused so much disruption or divisiveness that it began to actually harm the organization. After all, professional football is a business, and one employee (particularly a backup quarterback) is rarely bigger than the organization as a whole.

Topics: first ammendment