WASHINGTON ― When President Donald Trump called on NFL owners to suspend or fire players who protest racism and police brutality by kneeling during the national anthem, he was doing something rare for a U.S. president: using the power of the state to publicly call for people engaged in political protest to lose their jobs.
“The McCarthy era is the closest comparison that comes to mind,” said Kevin Boyle, a professor of American history at Northwestern University, referring to the blacklisting of professors, writers and autoworkers during Sen. Joseph McCarthy’s campaign to root out alleged Communists. “Even then I don’t remember a case of a president explicitly calling for a particular American to be fired from private employment. And what does it say about our moment that the closest comparison is McCarthyism?”
Another academic pointed to Ronald Reagan, who in August 1981 fired more than 11,000 air traffic controllers who refused to quit their strike and go back to work. “To strike as a group or refuse to cross a picket line as an individual are examples of free speech,” said Elizabeth Tandy Shermer, an assistant history professor at Loyola University Chicago. But that case was different, as Reagan was taking a legal action and, under federal law, the air controllers weren’t legally permitted to strike.
In his previous career as a reality television star, Trump could fire someone for not standing during the national anthem — the First Amendment limits the power of the government, not private entities like the Trump Organization or NBC’s “The Apprentice.” NFL team owners’ power to fire their employees is similarly unrestrained by the Constitution. (Though union contracts may offer protection.)
But when the president urges an employer to punish employees who engage in free speech, that is against at least “the spirit” of the First Amendment, said Floyd Abrams, an attorney and expert on constitutional law. “We would ordinarily look to a president to protect, not vilify” that spirit, Abrams added.
An employer can impose certain rules that may abridge free speech rights at work. But “we’re really talking about Donald Trump here,” said…