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James Lankford
stated on September 25, 2017 in a press conference:
"The First Amendment’s the First Amendment. It goes start to finish. We can’t say to one football coach you’re fired if you kneel in silent prayer at the end of the game, but to a player, if you kneel in protest to a game, you’re celebrated."
true half-true
Manuela Tobias
By Manuela Tobias October 2, 2017

Sen. James Lankford's misleading comparison about NFL protests, firing of high school football coach

What’s the difference between a football coach kneeling in prayer and an NFL player taking a knee in protest?

A reader asked us to look into this question after Sen. James Lankford, R-Okla., suggested the two were being treated differently under the law at a press conference on Sept. 25, 2017.

"Now the First Amendment’s the First Amendment. It goes start to finish. We can’t say to one football coach, you’re fired if you kneel in silent prayer at the end of the game, but to a player, if you kneel in protest at a game, you’re celebrated," Lankford said.

Is the First Amendment setting a double-standard being set when it comes to kneeling and football games? Not quite. Lankford’s comparison is misleading, as the First Amendment is only applicable to one of these cases. In addition, he doesn’t have all of the facts straight.

The football coach

Lankford said high school coaches have kneeled in silent prayer and have "been fired." There’s one case that fits the description, though it’s wrong to say the coach in question was fired.

Lankford was referring to Joseph Kennedy, an assistant football coach at Bremerton High School in Bremerton, Wash.

Kennedy led students in locker-room prayers before and after most games and prayed on the 50-yard line after games.

He also gave motivational speeches on the 50-yard line that he said "likely constituted prayers," according to subsequent court documents. "Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content," according to court documents.

The school only let him pray on the 50-yard line after students and parents had left the field, which he did for awhile, but eventually returned to praying before they departed.

When it came time for annual review, "the athletic director recommended that Kennedy not be rehired because Kennedy ‘failed to follow district policy’ and ‘failed to supervise student-athletes after games due to his interactions with (the) media and (the) community,’" according to court documents.

In the end, Kennedy wasn’t fired.

After his contract expired, alongside the five other assistant football coaches’ year-long contracts, the district opened up his position and Kennedy did not reapply.

Instead, Kennedy "sought an injunction ordering the district to ‘cease discriminating against him in violation of the First Amendment.’"

The district court denied the injunction and the 9th Circuit panel upheld that decision. Lankford, co-chair of the Congressional Prayer Caucus, drafted a challenge to the school district in 2015 on the issue.

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Lankford’s office did not provide additional examples that fit the description of his claim.

The First Amendment

The First Amendment protects the expression of private citizens, which the coach would have exercised if praying in the stands or the sidelines, according to Gene Policinski, chief operating officer of the Newseum’s First Amendment Center.

Students (in this case comparable to the NFL players) are free to pray silently, but as public employees, coaches are only allowed to do so under circumstances in which they don’t offer an overt endorsement of their religious views.

"When Kennedy kneeled and prayed on the 50-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected," the 9th Circuit wrote in its opinion denying Kennedy’s injunction claim.

The court found that Kennedy "took advantage of his position to press his particular views upon the impressionable and captive minds before him."

While there may be disagreements with the court’s ruling (like Lankford’s), the key distinction between the coach’s case and NFL players is that restriction of free speech by the First Amendment only applies to the former, as it constitutes government action. The First Amendment doesn’t apply to a privately owned company like the NFL.

When kneeling, NFL players are acting as private individuals, so they enjoy the same free speech and free exercise rights that Kennedy’s players would enjoy. However, the First Amendment isn’t enough to protect them against their employers because their employers aren't the government.

Only state laws, and in some cases employment contracts, can rein in the limits set by their employer, experts told us.

"It does not violate the First Amendment for a private employer (or for customers/fans) to disapprove of an employee's speech," said Richard Garnett, a law professor at Notre Dame University.

So while some fans may celebrate players’ kneeling in protest, it’s up to the NFL whether to take action.

Our ruling

Lankford said, "Now the First Amendment’s the First Amendment. It goes start to finish. We can’t say to one football coach you’re fired if you kneel in silent prayer at the end of the game, but to a player, if you kneel in protest to a game, you’re celebrated."

His complaint of the First Amendment’s double standard is misleading because the First Amendment only applies to government action, or the public high school football coach. The First Amendment doesn’t protect NFL players’ speech, which is under the purview of their employer.

Additionally, the football coach Lankford discussed wasn’t fired; he failed to reapply once his contract ended.

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https://www.youtube.com/watch?v=xlP9sz0uM6k&feature=youtu.be
"The First Amendment’s the First Amendment. It goes start to finish. We can’t say to one football coach you’re fired if you kneel in silent prayer at the end of the game, but to a player, if you kneel in protest to a game, you’re celebrated."
In a press conference
Monday, September 25, 2017

Our Sources

Youtube, Senators Lankford, Tillis, Hatch Introduce the SUCCEED Act, Sept. 25, 2017

Email interview with Darrell Jordan, Communications Director for Sen. James Lankford, Sept. 28, 2017

Phone interview with Gene Policinsky, chief operating officer of the Newseum’s First Amendment Center, Sept. 28, 2017

Email interview with Richard Garnett, law professor at Notre Dame University, Sept. 28, 2017

Email interview with Kermit Roosevelt, law professor at University of Pennsylvania, Sept. 28, 2017

Email interview with Erwin Chemerinsky, Dean of the University of California, Irvine School of Law, Sept. 29, 2017

United States Court of Appeals, Opinion, Aug. 23, 2017

Lankford.Senate.gov, Senator Lankford, Rep. Forbes Lead Congressional Challenge to Washington School District in Support of Praying Football Coach, Oct. 27, 2015

 

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