Sunday, June 3, 2018

The Ethics of Protests

There has been a great deal of commentary flooding the airwaves over the last few weeks regarding the decision by the NFL to prohibit their players from kneeling during the National Anthem in protest of injustice in America, and specifically the excessive use of force against Americans of African ancestry. I don’t propose to comment on the political or ethical issues surrounding either the injustice or the protests themselves – I don’t actually believe there is any debate that the treatment of persons of color in this country is deplorable, or that the First Amendment to the Constitution gives the players the right to protest the situation. But the NFL ruling itself is being described and defended as a business decision, which brings it into the scope of this blog. I thought we should take a closer look…

First off, it is important to recognize that for all that it acts like a Federal institution, the National Football League is a business, owned and run by private citizens. Functionally it is more like a collective than an actual franchisor, despite the individual team organizations being called “franchises,” but that does not change its legal status. As long as the restrictions are applied equally to all groups and parties within their workforce, the NFL telling the players not to protest something while on the job isn’t really any different from another business telling its employees not to wear MAGA hats while at work, for example. Or, for that matter, asking its personnel to wear clothing that covers any tattoos during working hours…

One could reasonably argue that the NFL’s claim that allowing the protests to continue is bad for their business is not convincing. So far, at least, I haven’t seen any data that suggests that people who are specifically opposed to these protests will stop watching the games, or that any of the advertisers will stop sponsoring the broadcasts. Likewise, the argument that other groups will start demanding equal time is rather dubious; to date no one seems to be staging protests that there aren’t enough people of color being randomly shot by the police, or that First Amendment rights are somehow a bad thing. In fact, over the last few decades there have been any number of players – and occasionally entire teams – wearing special colors or graphics in support of various causes, and this does not appear to have impacted the League’s business success, either…

At the same time, it doesn’t seem unreasonable to suggest that the League is under no obligation to provide their employees with a public forum in which to promote their position, either. If the NFL wants to require their broadcast partners not to air footage of the players kneeling, or deny access to the games to journalists and sportswriters who describe or display pictures of the protests, they would appear to be within their rights to do that. If they attempted to prevent their employees from talking to the press about the protests, or from holding rallies and/or giving speeches in support of their position there might be some difficulty, but if any of the teams or their owners have tried to implement such a restriction there hasn’t been any mention of it so far…

The issue is being complicated by the fact that the issue is inherently political in a way that wearing pink in support of breast cancer awareness or airing commercials in favor of youth sports and fitness is not, to take only the most obvious examples. It is also being complicated by the fact that both the League and the teams make use of the names, uniform numbers, and likenesses of certain players for promotional purposes, in which case the promotion of any particular cause by a player can be interpreted as support for that cause by the NFL itself, if the observer cares to see it that way. But despite these and other complications, the basic question is fairly straightforward…

Does the NFL have the same right to restrict the political and/or social protest activities of its employees while they are in uniform and actively working for League members that any other business has under the same conditions? Does the fact that their employees are public figures, and that the NFL itself has contributed to producing and maintaining those public identities give them rights over the actions or speech of their players that would not apply to other companies? It doesn’t seem reasonable to allow retail associates at The Gap to run through the store with “Free Tibet” banners, or to require McDonald’s to allow its employees to wear PETA regalia while on the job. Should NFL players have greater or lesser freedom of speech than any other American workers? Or should the teams and the league avoid all political and social commentary (at least on camera) and just produce and display athletic competitions?

It’s worth thinking about…

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