No Freedom of Speech in the NFL

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Last week, Chris Kluwe, a former punter for the Minnesota Vikings and noted gay rights activist, published an article on Deadspin entitled “I Was an NFL Player until I Was Fired by Two Cowards and a Bigot.” The article addresses Kluwe’s firing, an action the punter argues had less to do with his football skills and more to do with his actions and beliefs about gay marriage. The “cowards” from Kluwe’s article refer to former Vikings head coach Leslie Frazier (now the new defensive coordinator for the Tampa Bay Buccaneers) and Rick Spielman, the team’s General Manager. The designation of “bigot” belongs to Mike Priefer, the special teams coordinator and immediate supervisor of Chris Kluwe.

In the article, Kluwe chronicles the major events leading up to his dismissal, detailing his activity in the gay rights movement (including this colorful letter to Maryland Delegate Emmett C. Burns Jr.) and the resulting reactions within the Vikings organization. Specifically, the article alleges incendiary and hateful comments made by Mike Priefer, including an unsolicited statement made to Kluwe in front of several teammates that “We [heterosexuals] should round up the gays, send them to an island, then nuke it till it glows.”

The resulting outrage from Kluwe’s revelations was swift. Facebook, Twitter, and Reddit became battlegrounds for competing narratives. How is Chris Kluwe being portrayed? Is he taking a noble stance against hate-mongering, or is here merely a vengeful, disgruntled employee angry about losing his job? And what about the implications raised by Chris Kluwe’s original statements concerning equality with respect to gay marriage? How do they fit into the narrative? Is this episode largely positive in that gay marriage, as a cultural milestone, is finally butting heads with what is stereotypically considered the bastion of all that is heteronormativity: the NFL? Are these events a reminder of the inevitability of our society’s push towards inclusivity and equality? Or should this chapter be associated with dismay? Dismay that – if the allegations are true – men like Mike Preifer exist, and have platforms from which to loudly proclaim their ignorance.

The question that has largely casino online been overlooked is whether or not the Minnesota Vikings could fire Kluwe based solely upon his support of gay marriage. For now, it should be treated like a hypothetical, for although Kluwe is “pretty confident” that he was fired on those grounds, nothing is certain.

The question we should examine: can an employee of a private, non-governmental organization be fired for his or her statements to the press about an issue completely irrelevant to the job held? The answer, it turns out, is yes. First things first, Kluwe still has the right to discuss (almost) anything he wants in a public forum without any retribution from the federal, state, or local government. It is also worth pointing out that, had Kluwe spoken publically about working conditions specifically, i.e. treatment by the Vikings or other workplace-related concerns, that speech might be protected through the National Labor Relations Board. Furthermore, some states – notably California – extend free speech protection to private employees through its state constitution, a safety net not afforded private employees in other states.

The real impact of the First Amendment is near absolute free speech in the face of an overbearing government. However, the only employees that have much claim to freedom of speech within the United States are governmental employees. Therefore, a person can burn an American flag and not be prosecuted for any wrongdoing under the First Amendment. But should his or her employer find out, that might be a different story.

Consider this: back in 2012, the CFO for medical device supplier Vante berated a Chic-fil-A employee for being employed at what the CFO considered to be a homophobic corporation. The CFO, Adam Smith, was recorded as he publicly admonished the Chic-fil-A employee. This recording went viral on the Internet, and Vante fired Smith. In no way were Adam Smith’s actions connected to his role as CFO for Vante. His speech was protected under the First Amendment, and as such he could not be prosecuted for his speech. However, that protection did not extend to his private employment.

The harsh reality remains that if Minnesota Vikings had indeed fired Chris Kluwe for his actions, he would not be able to use the First Amendment for cover. This, of course, serves only as a reminder. The Minnesota Vikings would never admit to firing Chris Kluwe over his activism and speech concerning gay marriage – this would further stoke the fires of a public relations disaster already ablaze about the culture of an NFL team housed in a gay marriage-friendly state.

 

About Sean Dugan

Sean Dugan is a recent graduate of the University of San Francisco School of Law and holds a B.A. in History from the University of Berkeley. His legal interests are expansive but he holds a special affinity for intellectual property rights. When not focusing on the law, Sean enjoys politics, the AMC series 'Breaking Bad,' and the city of San Francisco. His greatest passion is cheering for the Boston Celtics. His second greatest passion is rooting against the Los Angeles Lakers.
Posted in: Constitutional, Law, Society, Sports
  • Steve

    I would suggest the ignorant ones are the pro-homosexual advocates. For one to consider homosexuality (sodomy) as normal one must posess a perverted and abnormal mind. A homosexual is one that has a sexual desire or urge for the same-sex. I can Love my brother or best friend but that doesn’t mean I want to have sex with them.