These days it seems that everyone is protesting something. Trump supporters. Trump haters. Antifa. NFL players. Teachers. Black Lives Matter. White Nationalists. And indeed, it seems that everyone has an opinion about those protests.

Putting aside the merits of any such protest, one thing certain is that when a protest’s substance or method is criticized, someone is guaranteed to shout, “free speech!” in response to the criticism. It has become a mantra for both sides of the political isle and for commentators from The View to CNN to Fox News to incorrectly argue, in effect, that the First Amendment protects people from criticism of their views by others. Of course, the First Amendment provides no such protection.

But there is a more fundamental question: Are First Amendment notions of “free speech” implicated at all here? When NFL players kneel during the National Anthem, are they really exercising their First Amendment Rights? When Trump supporters hold a rally in a park, are they exercising their First Amendment rights? No, they are not. And neither are others who criticize or support the NFL players or the Trump supporters. These are merely private actors saying and doing as they please. The First Amendment is not implicated at all here and is irrelevant unless a governmental actor becomes involved to limit the speech of those protesting or those commenting in response. Only then is the First Amendment implicated to provide protection against such government action.

Thus, if the City or County of San Francisco sought to fine a 49ers player for kneeling during the Nation Anthem, the First Amendment would be implicated. However, so long as the protest and any support or criticism of the protest is limited to 49ers players, the owners of the 49ers, fans, sports commentators and other private actors, the First Amendment is irrelevant.

By analogy, a couple watching a movie at home in their living room is not exercising their Fourth Amendment right to be free from warrantless searches and seizures. They’re just watching TV. Only after the government comes banging on the door demanding entrance without a warrant is the Fourth Amendment implicated. Likewise, until the government tries to shut you up, you are not exercising your First Amendment rights.

Patrick J. Van Zanen 


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