Free Speech, Private Action and the NFL

Individual rights are absolute. In isolation, the individual’s ability to exercise his rights are bounded only by his imagination and his own physical limits.

As a producer, the individual retains the same sort of dominance: any product that issues from his applied mental and physical labors is his to control. Without his reason, without his applied talent, his creation would be a mere possibility in the ether of the plane of abstraction. His rights to control his production are as sovereign as his right to control his own body.

This means he has the requisite authority to set the terms by which others may use his product. No individual has rights to the product of another, only the privileges the producer chooses to extend.

If a third-party actor is allowed to dictate the terms on which he may use another’s creation, the producer is no longer master of himself. He is enthralled, not only in body, but in mind as well, to the desires of others.

Need is not a claim upon another. One cannot escape the fact that the existence of all material good depends entirely upon someone’s efforts. That effort cannot be disregarded without subjecting the producer to a form of slavery.

Your rights end where another’s begin: this is a familiar maxim. But it is often understood as a limitation upon both parties: as if there is some sort of neutral ground in the overlap between peoples’ rights when they come into interaction, where both are treated equally.

In terms of the rule of law, this is an important principle. But it does not hold true in private affairs.

Enter the NFL anthem protests. We are not interested here in determining which party—the protesters or those protesting the protesters—has a more persuasive argument. Merely in determining where the free exercise of rights comes into play, for both sides have wrapped themselves in the mantle of free speech.

And this is not a free speech issue. Private organizations—which is what the NFL is—cannot violate speech rights. This is because they are a platform created through the productive efforts of individuals who retain the right to set the terms on which it may be used. Franchise owners bear the economic costs of promoting their team’s brand; it is they who are affected by public backlash. They assume the vast majority of the operating risks, risks taken with the understanding that their efforts will buoy the brand, which comes with benefits to their employees—the players—as well.

Franchise owners have the right to dictate how players may behave when they are engaged in activities upon which the brand’s success rises or falls. They have the same right to control what players have to say while on the field as do league officials who set the rules of conduct for gameplay. It is a free speech issue only in terms of owners having the right to control the product into which they have poured something of themselves. Players have no such rights: they are representatives of someone else’s production and keep their jobs on the terms which the creator sets. There is no parity in this relationship: there cannot be without jeopardizing the freedom of the creator.

Unless, of course, individual franchise owners freely choose to loose some control over their product. Production is often not a solitary act. And while the mind of the creator gives him ultimate control over a product, the rational man will also understand that his success is bolstered by the efforts of those who labor on his behalf. The original ideas and acts that set production in motion are exclusively his, but his success is, to some extent, dependent upon elements external to himself.

In this vein, NFL franchise owners may give to their players greater freedom to set their own standards for action. A more communitarian approach can bolster the team’s morale and productivity, thus contributing to success.

But conferring greater freedoms upon players is not tantamount to an issue of free speech. If players are given the option to protest the anthem by their coaches and franchise owners, it is because those in charge have chosen to be lenient and facilitating. The judgment of the original producer is still in operation.

And this is the prime element at play in the NFL anthem protests and other culture war issues. It is up to the original producer to set the rules on which tussles within private organizations may be fought.

By a similar token, consumers have a right to exercise their conscience through their purchasing power. However, companies, while they are often benefited by pandering to the tastes of their consumers, are not obligated to do so. There is a difference between an individual quietly choosing to no longer purchase a product from a company whose values no longer align with their own and an organized boycott. The latter has a coercive end: it attempts to force a company into compliance with a particular worldview. It attempts to force a producer into alignment with its consumers and flips the act of production on its head. Again, need is not a claim upon another. While producers are buoyed in the world by creating some good that satisfies a desire, their first aims are selfish. The productive mind seizes upon some idea in which it finds virtue and uses its physical abilities to make tangible that meritorious solution it has discovered. Production is an act that expresses individuality. Any attempt by consumers to bend producers to their will violates the inherent selfishness of the productive act and attempts to enslave the creative process.

Consumers may dislike the NFL’s policies and may cease to watch it. It is their right to not support that with which they disagree. The same principle applies to Nike: if they do not like the values expressed in their ad campaigns, they may cease to buy Nike products. However, they do not have the right to set the terms on which either organization exists. It is one thing to not financially subsidize values with which one disagrees: this is an action focused upon the individual’s right of conscious. It is another to engage in an organized action that focuses on the behavior of another: this is no longer about regulating the self; this is about regulating the conduct of a third-party. But though the individual has the absolute right to govern one’s self, he does not have the right to do the same to another. He cannot without setting a precedent hat undermines his own sovereignty.

Boycotting Nike or the NFL is not an issue of free speech because it violates the ability of the producer to be sovereign over his own creation.

All content protected by copyright. The Politics of Discretion, 2016.
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