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Should Kaepernick Sue Trump?

CHARLOTTE, NC – SEPTEMBER 18: Eric Reid #35 and Colin Kaepernick #7 of the San Francisco 49ers kneel on the sideline, during the anthem, prior to the game against the Carolina Panthers at Bank of America Stadium on September 18, 2016 in Charlotte, North Carolina. The Panthers defeated the 49ers 46-27. (Photo by Michael Zagaris/San Francisco 49ers/Getty Images)

Color me skeptical, but a bit interested.

If his collusion case against the NFL and its team owners fails, former San Francisco 49ers quarterback Colin Kaepernick, allegedly blacklisted by the league for his decision to kneel in protest during the national anthem, may have another legal recourse: suing President Donald Trump and the NFL for violating his First Amendment rights.

Trump has spent much of the past year trashing the protests of predominantly black players to the delight of his political base. He has repeatedly called on NFL owners to prohibit players from protesting. Last September, he used a campaign rally in Alabama to urge the team owners to fire any “son of a bitch” player who protested.

Trump’s demagoguery has had an obvious effect on the NFL and its owners, who in May approved a new policy that requires players to stand for the national anthem if they are on the field before games. Trump has continued to wield the issue since: on Monday, he blamed anthem protests for his abrupt cancellation of the Super Bowl champion Philadelphia Eagles’ Tuesday visit to the White House, even though no members of the team knelt during the 2017 regular season.

But Trump’s actions, some legal experts argue, may also have opened him up to claims that he and the NFL violated the players’ First Amendment rights to free speech and peaceful protest, especially if his threats against the league helped force owners to institute the new policy or influenced their treatment of protesting players.

“It’s a very bold step to sue the United States based upon alleged wrongdoing of the sitting president, and filing such a claim might make a player such as Colin Kaepernick into an even more polarizing figure,” said Marc Edelman, a law professor at City University of New York’s Baruch College. “However, based upon the pure black-letter law, a [First Amendment] claim of this nature may have a reasonable chance to succeed.”\\

“President Trump made things substantially worse for himself when he tweeted what reasonably can be construed as a threat to attempt to take away tax benefits from NFL teams if they did not fire protesting players,” Edelman said.

The NFL voluntarily relinquished its tax-exempt status in 2015, but the league’s teams and owners still benefit from certain tax breaks, including one that subsidizes federal bonds used to build new stadiums. House Republicans attempted to repeal that tax break in 2017, and The Washington Post reported Monday that Trump assigned aides to research how the White House could punish the league through tax reform. Trump, however, eventually signed a tax reform law that maintained the current subsidy.

Had Trump followed through on this threats to change NFL-related tax laws, a First Amendment case against him would be “more straightforward,” said Leah Litman, a constitutional law professor at the University of California, Irvine, who has written about the potential for NFL players to bring a First Amendment case against the president. Litman also suggested that ESPN anchor Jemele Hill, who came under criticism from the White House after calling Trump a white supremacist, could have had a potential First Amendment claim against the president had ESPN chosen to fire her.

As it stands, the question is whether Trump is merely using the presidential bully pulpit or actually “changing [owners’] minds in his capacity as president,” Litman said. “That is, is he using official channels rather than just using the power of speech?”


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