Why NFL's Ban On Player Protests Invokes First Amendment Concerns But Canceling 'Roseanne' Does Not

Yesterday, the ABC television network canceled Roseanne Barr's sitcom "Roseanne" in response to the entertainer's Twitter rant, in which she compared one of former U.S. president Barack Obama's advisers, who is African-American, to an ape. Since then, some conservative commentators have questioned why the NFL's new rules that bar player protests might invoke First Amendment concerns but ABC's firing of Barr does not.

The answer to that question, however, is quite simple: It all comes down to the presence (or absence) of state action.

While there is a wide range of behavior that may restrain free speech in the colloquial sense, a violation of one's right to free speech under the the First Amendment of the U.S. Constitution requires some form of "state action." With respect to the recent attempts to prevent NFL players from protesting during the playing of the U.S. national anthem, there are at least two arguments that the restraint on speech constitutes a form of state action.

First, President Donald Trump, in comments both to the press and on Twitter, threatened to remove “massive tax breaks” from the 32 NFL teams unless they were to “fire” players who protested during the U.S. national anthem. While Trump, as a private citizen, is entitled to have any opinion of the NFL players' protests, the Supreme Court decision in Bantam Books Inc. v. Sullivan explains that when a government employee uses the “threat of invoking legal sanctions and other means of coercion, persuasion and intimidation” to induce private entities to act in a way that chills free speech rights, that government employee's conduct violates the First Amendment.

Second, the restraints on free speech involving NFL players, in certain circumstances, may occur in stadiums that are owned and operated by local municipalities. For example, in the recent U.S. District Court for the Northern District of Illinois decision of Beckman v. Chicago Bear Football Club, the court ruled that a Green Bay Packers fan may proceed with his First Amendment lawsuit against the Bears after team management refused to allow him to attend an on-field event in Soldier Field (a facility jointly operated by the Bears and the Chicago parks department) while dressed in Packers clothing.

Unlike the case of protesting NFL players, Barr's termination by ABC does not seem to involve any form of state action whatsoever. Thus, while in the colloquial sense it might be fair to say that Barr's television career has been derailed based on her speech, it would be entirely inaccurate to allege that she is a victim of a state actor's efforts to limit her speech in manner that would violate the First Amendment of the Constitution.


Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law, where he practices in the areas of sports, antitrust, gaming and intellectual property law. He is the author of "Standing to Kneel: Analyzing NFL Players' Freedom to Protest During the Playing of the U.S. National Anthem."
