DANIEL VAUGHAN: The NFL’s new policy is censorship disguised as compromise

May 25, 2018

Let’s start with an elementary point. Legally speaking, it’s entirely within the NFL’s lawful rights as a private employer to punish or fire any player or employee in the league for expressing any form of speech. The new rules promulgated by the NFL to teams and players are 100% legal and constitutional for a private organization.

Legality isn’t the problem.

A culture of censorship, however, is a problem.

The new rules mandate that all players and personnel on the field during the anthem must stand and “show respect.” If any player or staff doesn’t want to adhere to that policy, they have to remain off the field. Finally, any club in the NFL with players or personnel caught violating the order will get fined, and all teams are encouraged to develop in-house rules that enforce this policy.

As I said before, this is all perfectly legal and constitutional. But as the late great jurist Antonin Scalia once observed, it’s possible for any law or policy to be thoroughly stupid, but still constitutional.

The NFL’s new rules copy an alarming trend among progressive businesses where private organizations are attempting to censor ideas, images, and speakers they don’t like. Canada and Europe also follow similar rules.

There’s no difference in the NFL’s rules than when Silicon Valley formed a mob to have Brendan Eich fired as Mozilla’s CEO, solely on the grounds he promoted traditional marriage.

There’s no different in the NFL’s rules than when Google fired an engineer for pointing out the liberal ideological echo chamber of the company.

There’s no difference in the NFL’s rules than people getting jail-time over social media posts in England or for making disparaging statements on Islam in Canada.

What we’re witnessing is enforced speech codes where a private company, or highly progressive countries in the cases of Europe and Canada, pressures you to conform your speech and thought to fit into politically correct boxes.

George Orwell famously wrote in 1984, “Power is in tearing human minds to pieces and putting them together again in new shapes of your choosing.” What we’re encountering increasingly in popular culture is a thoroughly corrupt form of this power that’s trying to shape minds to the dominant ideology.

A common point raised to all of this is that football players are employees, just like everyone else, and if they don’t like it, tough luck. If any regular employee did something their employer didn’t want, they’d get fired too.

That criticism misses the point. Just because something is legal doesn’t make it right. Just because a corporation has the right to punish or fire someone for their speech or conduct doesn’t mean we should advocate a culture that engages in this sort of action.

If you force NFL players to stand for the anthem under threat of punishment, in effect you’re approving of Mozilla and Google firing conservatives and libertarians for their beliefs. If you force the players to stand, you’re joining the UK and Canada for jailing people over speech.

Free speech is a two-way road. However you restrain or censor one group will be used on you too, whether it’s public law or private policy. The NFL, Google, and Mozilla are all engaging in corporate censorship backed explicitly by the threat of corporate punishment. If you don’t toe the company line, your entire career could be endangered. This type of thinking elevates corporate speech codes above fundamental human respect.

The Supreme Court has long debated the boundaries of free speech and the First Amendment in America. The tough questions don’t involve normal speech. The hard cases always center around the ugliest forms of expression. Perhaps the most offensive case to ever reach the court was Snyder vs. Phelps, the case involving Westboro Baptist Church’s right to protest the private funerals of fallen soldiers.

And as offensive and vile as Westboro is in everything they do, the Supreme Court upheld their right to protest outside while families mourned. In the majority opinion, the court said:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and–as it did here–inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course–to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

The Court chose the path for the nation in defending the First Amendment. It cannot do that for culture. Only we can sustain a culture that embraces and protects the right of free speech, no matter how odorous it is.

Our culture should reflect that same legal philosophy, which says everyone is free to speak their opinion, free from reprisal from their employers and society.

Should employers be forced to accept all speech and conduct? Of course not! That violates their freedom of association and speech rights as well.

But firing someone for speech or protest should be a rarity, not the norm. And if we continue to destroy that standard, we’re saying that we’re not one nation united, but rather a segregated society of left and right. To use an old description, we would reassert a separate but equal society, one where speech codes enforce segregated lines, with equally harsh punishment.

Hiding players in a locker room, while everyone else engages in corporate speak, separates everyone while pretending they’re equal. Firing employees for conservative beliefs segregates everyone in their jobs but pretends people are still same.

Culturally enforced segregation is far more dangerous than any anthem protest. Separate but equal is more odious than any protest against the flag or America.

We should reject it and reaffirm a culture of free speech, thought, and association.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.