I’ve recently heard that the executive board of the union representing officers of the Santa Clara (California) police department have published an open letter to the NFL and the San Francisco 49ers football team. The gist of the letter appears to be that several of their members disapprove of the actions of one of the 49ers players engaging in political protest in their presence, by refusing to stand for the playing of the National Anthem before games. The letter apparently suggests that these officers are not willing to be at Candlestick Park (or wherever the 49ers play) to provide security unless and until the team and/or the league sanction the player for his behavior.
Does anybody know the circumstances under which these officers have been providing security at the games to date? I would have thought that these officers were off duty, and essentially moonlighting. Yet some of the outcry I’ve witnessed seems to be calling for the officers involved in this proposed “boycott” to be fired from the SCPD. Which, if they are moonlighting, makes no sense to me.
My understanding is that stadium security consists of a mixture of police officers and private security people (some of whom are off-duty police officers).
As for the letter, I have my suspicions. Police officers are expected to do their jobs in a wide variety of circumstances. They’re expected to work at political protests where people might be burning flags and not just refusing to stand up during the national anthem.
And police officers are government employees. Saying they’ll refuse to work because somebody is exercising what is a constitutional right could cost them their jobs.
The union is just trying to put political pressure on the 49ers. They have no legal leg to stand on. If the officers are assigned to work the game, they work it or get fired. If they are off-duty security, they can stay at home and sacrifice the extra pay.
They might be expected to do that, but it hardly means that they always will. Given that that a significant faction of the NYPD recently committed outright mutiny with no consequences to show for it I have my doubts about the respect held by many police officers for the ideals of public service.
It’s an extra duty job they can voluntarily sign up for on their day off. There is no mandate to work the job. They are not neglecting the public by giving up extra money on their day off. Colin Kaeperneck can publicly show his point of view. So can they.
We need to find that law that requires people to stand when the national anthem is played, and get Kaepernik convicted and sentenced. We also need to find the clause in his contract that requires same and get him fired. Where did he get the idea that he is allowed to sit down when he wants to? The nerve!
What do you mean there’s no such law and no such clause? How can we expect people to show patriotism in the ways we approve of if we can’t force them to do so?
Of course widely recognized hate speech and symbols that are associated with extermination of those of the wrong religion, skin color, etc. are exactly equivalent to someone choosing not to follow a social custom, aren’t they? Only in minds that don’t think very thoroughly, it would seem.
To answer your second question (the parenthetical one), government employees are constrained to a certain extent by the Hatch Act.
The first question is a little fuzzier. Mr. Kaepernik, provided he does not violate the terms of his contract with the 49ers, is free to engage in whatever behavior he wishes. That said, his freedom to do so does not rise to the level of constitutionally-enumerated right. I haven’t read his contract, but it would be surprising to find a clause in it that compels his participation in any political ritual. And if you want to get even fuzzier, there’s a good argument to be made that his political activity was limited to his announcement of his reason for declining to participate in the political ritual. And THEN, the question arises as to whether he was “on the job” when he made that announcement.
The bit about swastika armbands? While I have my own reservations as to the good-faith spirit of your remark, I’ll go ahead and say that should Mr. Kaepernik decide to wear one while suited up to take the field, the constitution would have nothing to say about any action the 49ers would take in response.
Uniformed police officers would be another matter.
But in all those cases, the NFL had a specific rule they could point to that the player was violating - uniform violations. There’s nothing preventing the NFL from creating a new rule that all players must stand during the national anthem, but without such a rule I don’t see how they could fine Kaepernik, even if it suits them.
Well, there’s the 1st amendment. I can see where employers can forbid politicking at work, but I’m not so sure they can compel patriotism. Do you see the distinction? Perhaps one of our legal experts can chime in.
Plus, it would be fool’s errand to try and do so. A person could stand, but face away from the flag. If he was compelled to face the flag, he could close his eyes or lower his head. At some point, the employer is not going to be able to enforce every body position available to the determined protestor.
Ok, I agree with all that. My point was more that in the cases Loach linked to, there was a rule in place that the player was violating, even if its a stupid rule. There’s no such rule in place for the anthem, constitutional or not, so they’d have no ability to fine him.
Kaepernik’s right to speak freely at his workplace is an issue between him and his employer. If the 49ers prohibited him from sitting during the national anthem while he’s working for them, they would be within their rights.
But it’s a different issue when the government gets involved. The First Amendment is a limitation on government action. Police officers are representatives of the government.
So police officers are prohibited from using their authority to put pressure on the 49ers or on Colin Kaepernik to stand during the national anthem. That would be government interference with free speech.
And the same would be true if some player started wearing a swastika armband during games. If his team was okay with it, then the police couldn’t tell him to remove it.
They have fined players for off season tweets. Even for tweeting complaints about the food in training camp. The NFL and individual teams have a long history of punishing players for voicing their opinions.
It would be an interesting test case-- can employers compel patriotic acts. Could an employer forbid employees to have political bumper stickers on their cars-- that is, not cars with political bumper sticker allowed in the parking lot?
But employers don’t have unlimited authority in this arena, as there are religious discrimination concerns that could arise (statutory, not constitutional). This probably doesn’t apply to CK, but some folks could claim a religious exemption to standing during the anthem.