On the same day that a federal district court in New York ruled that the president cannot block Twitter users from his account, the National Football League announced that it will now require NFL players to stand for the National Anthem.
These two entirely different announcements contained one very common and embattled institution: the First Amendment and a society that increasingly relies on powerful private interests and platforms for public debate.
In Knight v. Trump, the district court opened a crack in the door of public forum doctrine, an important part of First Amendment law that makes it possible for citizens to claim their First Amendment rights in public or limited public spaces.
Seven plaintiffs in the case argued that their First Amendment rights were violated when President Trump blocked them for criticizing him on Twitter. The President’s legal team argued that his account was on a privately managed social media platform that was opened before the president was elected to office and was, therefore, not a public forum. As a result, the president’s team argued, the plaintiffs could not claim their First Amendment rights.
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The court disagreed. The court said that despite Twitter’s status as a private (but publicly traded) company, some of the functionality of Twitter constituted a limited public forum, particularly the direct exchanges between Twitter users and the president over public matters. When the president blocked those users, their free speech rights were violated and the government showed “viewpoint discrimination,” a description that is always fatal to the government in First Amendment cases.
In a televised press conference the same day as the court issued its decision, NFL commissioner Roger Goodell announced that players will be required to stand for the National Anthem. The new policy was made in response to players who knelt during the anthem to protest the deaths of unarmed black citizens at the hands of police. Colin Kaepernick, the player who began the practice, became the target of much criticism, but others, including students at high schools around the nation, also began to “take a knee” in solidarity with Kaepernick.
The new policy requires team personnel, including players, to "stand and show respect for the flag and the anthem" if they're on the field at that time. Linking arms and raising fists are also expressions that will likely violate the policy. Players will have the option to remain in the locker room. Those that violate the new policy face fines and a possible suspension, though the exact nature of the punishment will likely vary depending on the player and the team response.
As a private organization, the NFL is well within its rights to dictate such a policy (though there has been criticism that the policy was drafted without input from the player’s union). It would be very difficult for the players to make a First Amendment claim because the First Amendment does not reach into private organizations. Only when the government does the censoring – as in the Twitter case – can citizens claim or attempt to claim their First Amendment rights.
Still, both stories point out a troubling trend: a future of mounting First Amendment debates for a society that increasingly relies on powerful private platforms and interests for public debate. Whether it’s the football field or the Twittersphere, our discussion about public matters no longer takes place on the street corners. The most vigorous public debate now takes place in privately-held spaces, such as social media and our entertainment media, like the NFL, where the First Amendment has less reach.
The Twitter decision notwithstanding, the public square is increasingly owned by private interests who also want to dictate the terms of speech and expression. And it appears that both public servants and private interests are poised to exploit this at the expense of the First Amendment.
It’s a trend that should trouble us all.