State constitutions may protect players who are fined for violating the NFL’s ban on protests during the national anthem, according to incoming Harvard law professor Nikolas Bowie.
The revised NFL policy gives players a choice of remaining in the locker room or standing on the field during the anthem. In an article for Slate, Bowie acknowledges arguments that the policy violates the First Amendment, either because President Donald Trump influenced the decision-making process or because NFL stadiums are built with government subsidies.

But Bowie says the better place to look for unconstitutionality is within state constitutions, each of which have their own free-speech clauses. “And state supreme courts have been more willing than the U.S. Supreme Court to subject organizations like the NFL to the same constitutional standards as governments,” he writes.

The First Amendment begins with the words “Congress shall make no law,” and the U.S. Supreme Court has said it does not protect speech unless there is activity by a state or federal official, Bowie says. For that reason, the U.S. Supreme Court ruled the First Amendment does not require mall owners to open their space to protesters who wanted to distribute leaflets.

But the California Supreme Court has interpreted its free-speech clause differently. The provision begins, “Every person may freely speak,” and the state supreme court said it prevents the owners of a private shopping mall from banning protesters.

Many states have followed California’s lead in interpreting free speech clauses in their own constitutions to bar private organizations from fining protesters, Bowie says. Some state courts that protect protesters allow reasonable rules to minimize disruptions. But the NFL apparently adopted its rule because of fears of a bad reaction by fans or by the president. “In this context,” Bowie writes, “the NFL’s policy likely violates several state constitutions.”

Source: ABA Journal