First off, you must understand what the first amendment states... Know that. Now, let's say you are a employer who runs a retail business and you hire a new customer service associate to serve your customers needs. And you GRANT that associate unrestricted free speech. Now, that associate comes into work the first day and is wearing a shirt that says, "I hate this town and everyone in it." The townspeople come in and are offended by that associate because they like their town and the people residing there. They not only take their business elsewhere but also tell the owner they are doing so because of that offensive associates message on his shirt. They also tell others in the town about what they saw and suggests that the rest of the townspeople take their business elsewhere as well. Business suffers or will have the very real potential to suffer because of that associate. Does the owner have the right to revoke that associates right to wear that shirt and/or the unrestricted right to free speech while he in and/or working in that store? Does the owner have the right to fire that employee if he doesn't comply with the employers demand to not wear that shirt in that store as well as express his distaste for the town and it's people in some other understood way? And finally, does the First Amendment right to free speech (see above and understand it) protection apply to this associate in a case such as I described?
I commend the players for taking the risk and the NFL for backing them up. . . . By honoring the flag in their own way, it should be clear that they are differentiating themselves from the hypocrisy which has REALLY dishonored our flag. “WHEN SOMETHING IMPORTANT IS GOING ON, SILENCE IS A LIE” A.M. Rosenthal
The answers to your first two questions are case by case matters and depend on specific contracts in place, contract law in the jurisdiction, any applicable federal -labor- law or rules, any applicable state -labor- law or rules... but almost all contract law and specific contracts in place. They do not depend on any Constitutional law at all -unless- there is some weird -state- Constitutional provision applicable. The answer to your third question is "no."
Federal law and state law wouldn't apply. And contractual vs. "at will" employment isn't covered either.
If you are stating that federal and state labor law wouldn't generally apply to such scenarios, that's incorrect. If you are asking that state and federal law considerations be removed from the hypothetical, OK. To your second statement, my answer has nothing to do with whether contractual or "at will" employment controls in the jurisdiction, but rather the nature of the employer's "grant of unrestricted free speech" together with any other agreements between the employer and employee including things like handbooks, policy statements, memoranda, etc., in addition to formal agreements.
The employers "grant of unrestricted free speech" is revocable by the employer and is not covered (protected) by the first amendment.
Yes, yes, and no to your questions. This isn't really a free speech issue like you are pointing out. Two things I think are important to consider here. NFL players have contracts that guarantee a certain amount of pay over time. It may be the case that kneeling during the national anthem does not violate their contract in a way that would enable Owners, Coaches, GMs, to fire them without losing a lot of money. It may be that there is some gray area there that could allow them be fired, but could put the team in a legal situation they don't want to deal with. The second thing is the the GM, Owners, Coaches, may not all think they are disrespecting the flag or the anthem or the US. Some people have expressed the opinion that players are doing so with their protests, but that opinion is not universal.
Well, it's not covered by the FA. As to the first sentence, maybe, maybe not. As in all such matters, analysis begins with the nature of the granting language itself and whether a contract was formed. For example, if the employer said "If you come and work for me for 6 months, I'll allow you any kind of legal speech you like in the workplace," and the employee accepted that, then no, the employer could not arbitrarily rescind the grant without being in breach. Even if no contract was formed as part of the grant, certain disfavored equitable theories could apply also. I have covered the actual dispute resolution mechanisms in the NFL in another thread, if that is what the OP is getting at. It's a near certainty that there is a catchall provision in the collective bargaining agreement proscribing any kind of "protest" during games, maybe also in the individual player contracts. Players are fined or penalized for all kinds of things, from being late for flights/buses, to being under/overweight. If anyone cares that much (I don't) you can find the current NFL collective bargaining agreement in pdf form, in all its 300+ pages by searching "2011 NFL CBA." There may even be form individual player contracts in it or attached to it, no idea. There may be sample individual player contracts on the net somewhere, no idea.
If you exercise your rights under the first amendment, you cannot be criminally charged (with few exceptions), however under labor law you can be prohibited from exercising it in the workplace and you can likewise be terminated from employment if your employer decides to end the employee-employer relationship, unless you work under a union or personal services contract, then the terms and conditions of the contract would govern. Many people are under the false impression that the first amendment gives you cart blanche in the workplace and they are sadly mistaken.
No no no, here's the protest in perspective: there is a nuclear war brewing between the US and North Korea because your president is cocking up the negotiations, your have the largest prison population in the world, you have a murder rate that's through the roof, and millions of americans do not have enough food for their family. But I'm sure it's really important to complain about how people behave when some melody is played!
Ginsburg's Perspective is that the NFL protests are dumb and disrespectful. But she says nothing can be done to take those peoples Right to act stupidly. She also didn't mention the consequences facing those who want to act stupidly.
disrespecting the flag and america is actually cool and good. i'm not being ironic, america just sucks