San Francisco 49ers players kneeling during national anthem before game against the Dallas Cowboys. (AP Photo/Marcio Jose Sanchez, File)
Hana Callaghan directs the government ethics program at the Markkula Center for Applied Ethics at Santa Clara University in California. The opinions expressed are her own.
Do I think football players taking a knee during the National Anthem is disrespectful? Yes. Do I think this particular act of self-expression is unpatriotic? Yes. Do I find it offensive? Yes. Do I defend their right to protest a just cause in this fashion? Absolutely. While I hold dear our sacred secular symbols such as the flag and the National Anthem, I cherish our Constitution more. I leave to others to opine on whether the NFL—a private industry—should regulate the speech of its employees. However, when the president of the United States weighs in on this private dispute he may be violating ethical norms, constitutional prohibitions, and criminal law.
The president has called for boycotting NFL games if the owners don’t make the players stand. He has publicly called the players who kneel, “sons of bitches.” He has implied that the players who kneel shouldn’t be in this country. He has even threatened official sanction by taking away the NFL’s tax exempt status. (This was an empty threat. Unbeknownst to the president the NFL organization voluntarily gave up tax exempt status in 2015.) In April of this year, the New York Times reported that the president’s attacks against the NFL are resulting in the president’s desired intimidation of team owners.
Because public officials are in a position of trust they are essentially public fiduciaries and as such take on certain ethical duties when they enter public service. Included in these obligations is the requirement that they act in a fair and impartial manner toward all constituents. As a public servant, the president violates his duty of impartiality when he singles out certain companies for either promotion or—as in the case of the NFL—disparagement. Public officials also have a duty to put the public’s interest before their own personal interests. In this case, the public’s interest in enterprise free from governmental intimidation is taking a back seat to the president’s personal feud.
In addition, the president may be violating the Constitution. While a private company might be able to legally constrain the speech of its employees, the First Amendment prohibits the government from doing the same. When Donald Trump speaks he is not speaking as a private citizen, but as the ultimate representative of the United States Government. The White House has previously acknowledged that presidential tweets represent the official representations of the president.
The NFL owners don’t fear Trump because he is a disgruntled fan. They fear his rants not only because he is the president of the United States with the ability to influence regulation of their industry as a result of his personal vendetta, but also because of the megaphone his office provides. As president, Trump has influence over his supporters that can impact the bottom line of these private businesses and cost many jobs—not just those of the players. The president of the United States, acting with the full force of the United States government behind him, should not be allowed to unconstitutionally restrain the lawful speech of the NFL players.
Finally, President Trump may be violating federal law. In September 2017, the Democratic Coalition filed a criminal ethics complaint against the president with the Office of Government Ethics. The complaint alleges that the president has violated 18 USC §227 which prohibits a federal official, including the president, from wrongfully influencing a private entity’s employment decisions. A violation of section 227 can result in fines, imprisonment, or both.
The next time the president goes on a rant against NFL players taking a knee, he should consider the ethical, constitutional, and legal obligations he assumed upon taking the oath of office.