Dissenting Voices: Player Protests and the Paradox of the First Amendment

While free speech values are broad in scope, one particular value—dissent—is regarded by some theorists as one that should be the most fiercely protected. At the same time, dissent can expose a disconnect in First Amendment theory and practice. Scholar Steven Shiffrin has written extensively about dissent and his work is foundational to this dissertation. Shiffrin (1999) argues that the First Amendment presents a “paradox” whereby it protects dissenters from losing legal claims, yet it does very little to actually encourage this type of free speech in everyday society. Might this paradox be evident in sports settings? Sports have long stuck to colorblind convictions, yet it may be one of the few contexts in which diverse social actors come to deliberate. Athlete activism in American sport, for example, is fertile ground for debate about players' rights to express their views about social justice and dissent. Former NFL player Colin Kaepernick, whose decision to kneel during the national anthem throughout the course of the 2016 NFL season in protest of racial inequality, became a symbol for a clash of ideals: how America views the link between free speech theory and free speech doctrine. The realm of sport, therefore, becomes a relevant location to study the sociology of the First Amendment’s Free Speech clause and an examination of how much institutions—other than courts—can either promote or discourage the free speech value of dissent. This dissertation explores how backlash against NFL players kneeling during the national anthem during the 2016 and 2017 seasons stands in contrast to the spirit of the First Amendment. The paper analyzes theoretical approaches to First Amendment law to illuminate a great paradox that exists within the First Amendment. Case law is examined to tackle the issue of potential government interference in the free speech rights of protesting players, and whether there is a significant nexus between private sports teams and the government to determine the extent that free speech principles might apply within a sports stadium. This dissertation also probes the deeper questions relating to the NFL protest debate regarding the cultural struggles in America that can contribute to the contradiction in values which suppress the spirit of the First Amendment, or the paradox that emerges from the divide in letter-of-the-law symbology and spirit-of-the-law ideology in First Amendment philosophy.