This diary began as a comment in reply to DKos member DSuzuki’s diary: A Liberal Who is Not Happy with Kaepernick’s Protest
As employees of private employers, Americans do not have Constitutional protection to engage in political speech in the workplace; the employer can terminate you for doing so:
American employees’ free speech rights may be more accurately summarized by this paraphrase of a 1891 statement by Oliver Wendell Holmes, Jr.: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” In other words: to keep your job, you often can’t say what you like.
Note that some states, including California, offer broader protections of political speech in the workplace, and Mr. Kaepernick was employed by a California business (the San Francisco 49’ers) when he began his protest.
Here’s the thing— there are always political dimensions to the economic relationship between employer and employee, and we are protected by the law to speak about such politically loaded things as wages and working conditions:
… the National Labor Relations Act (NLRA), enacted in 1935, which protects employees’ abilities to unionize, protects certain types of speech that relate to group efforts to improve working conditions. Importantly, the National Labor Relations Board, which enforces the NLRA, has emphasized that employee conduct rules that prohibit employees from posting comments criticizing their employer on social media may violate the NLRA. Nonetheless, the NLRA’s protection has significant limitations. While the NLRA protects work-related complaints that an individual makes on behalf of other employees or in an attempt to initiate group action, it does not protect work-related complaints made solely by and on behalf of the individual employee herself. And because the NLRA focuses solely on group efforts to improve workers’ terms and conditions of employment, it protects political speech only to the extent that the speech relates to unionization and other work-related issues.
But we’re not simply talking about Mr. Kaepernick wearing a ‘I don’t like Trump’ shirt on the sidelines; we’re talking about the expectation that he stand for the playing of the national anthem— which is purely a political display (if the word political has any meaning at all), which the NFL and its teams choose to engage in before a game. The social custom of standing for the anthem, which is not required of private citizens, when imposed by coercion, is akin to a loyalty oath.
The issue here is not simply whether we can express political views in a private workplace (yes, but at our peril), but whether we can be forced to engage in a form of political expression we disagree with by an employer, who uses their economic power to coerce us.
That is, kneeling during the anthem is no more a political act than standing— but one is deemed preferable by certain prominent and influential members of our society.
Separately, the reality of the NFL is that it is broadcast to millions of homes, and obviously receives a lot of media coverage. For someone like Mr. Kaepernick to use his celebrity to voice opposition to political conditions in the US— views progressives by and large support— is an unambiguously good and important thing.
Briefly stated—I think we should support everyone with the courage to accept financial loss (like getting fired) to voice views that need to be heard.