In an age of presidential tweets, society has learned how social media can circumvent old rules and establish new norms that impact policy in government and the corporate world.

Last week the NFL announced a new policy that fines any player for taking a knee during the national anthem but allows protests out of camera view in the locker-room but not on the field.

That locker-room concession is legally important when it comes to the First Amendment.

In general, private companies like NFL franchises can restrict First Amendment freedoms and in some states even fire employees who violate policies.

But that’s not as ironclad as some attorneys might believe, especially ones working with the NFL on this new anthem policy. That’s where the locker-room alternative comes into play.

Fact is, some states have laws that protect political speech rights of employees in private companies. According to Eugene Volokh,  Gary T. Schwartz Professor of Law at UCLA,  in his paper titled “Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation” …

“About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution.”

Volokh was quoted on May 24, 2018 in a Washington Post article about the new policy, stating that the locker-room exception helps make it a “pretty solid case for the NFL.”

If that was the legal intent of the new policy, imagine, then, the scenario of NFL players using Facebook Live or other social media apps to cover their protest inside locker-rooms?

There’s a bigger question associated with mainstream media with access to locker-rooms: Will they be banned for simulcasting locker-room protests?

Interpersonal Divide in the Age of the Machine documents how social media continues to be one step ahead of the best legal minds, chiefly because no one can predict the circumstances and consequences of its 24/7 instantaneous global access.

Perhaps the NFL will work with Facebook to filter out such protests, especially since Facebook is looking at ways to do just that, according to this article in Tech Times.

We will have to wait until the NFL season begins to see how the new policy plays on the field, in the locker-room and potentially, in the courts.

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