mouth 3Colin Kaepernick, second string quarterback for the NFL’s San Francisco 49ers, takes a knee during the national anthem before each game. It’s his right. After all, maybe he has sciatica.

It’s his right because he lives in the country he does. The one he’s criticizing.

But what if he’s biting the hand that feeds him? What if the way he chooses to protest things in his country results in a drop in attendance at 49ers games? Is that right? Is it still . . . his right?

Should the 49ers have the right to fire him? Or to sue him for damages for breach of his employment contract if he causes a drop in their revenue or “just” fan goodwill and loyalty?

Kaepernick has a right to his free speech. But the right to free speech is not without limits. Can Kaepernick go into a dark movie theater and falsely yell “Fire!” just because he thinks it would be a “cool” thing to do? Not according to the U.S. Supreme Court. Someone else tried that. Got sued. Lost.

So, what are the limits on Kaepernick’s free speech? We already know he cannot try the dark movie theater bit. Does free speech entitle him with impunity to do what he’s doing at the playing of our national anthem at 49ers games? Even if it hurts the 49ers in their pocketbook? Or just results in boos from those who say “I get enough of this political and social nonsense nearly 24/7. I pay my hard earned dollars to enjoy a few hours of escape at a football game that is supposed to just be fun.”

Let’s step back a moment. What the Constitution provides is that government cannot intrude on or interfere with your right to free speech. Or Kaepernick’s. So the government cannot heckle Kaepernick when he takes a knee. But you and I can. That’s our right to free speech.

What about the 49ers? Can they interfere with Kaepernick’s taking a knee? Can they fire him? Because he’s a distraction to their business? Or just because they disagree with his politics?

That’s an interesting question. If the 49ers were instead the University of California, the answer would be no. The courts have held that an employer whose business serves a governmental purpose ( in this example, education) is enough “like” a government that it will be prohibited from interfering with free speech to the same extent an actual government would. There’s a second reason too. The University of California is supported by, or aided by, governmental funds in the form of tax breaks. That’s enough even if the employer is not serving a governmental purpose as does the University of California.

So, what about the 49ers? Well, our government is charged with advancing the “life, liberty and pursuit of happiness” of its citizens. The 49ers, and other sports teams, foster a sense of community camaraderie. Is that close enough to “happiness” to constitute a governmental purpose and therefore preclude the 49ers from interfering with Kaepernick’s limited right to free speech? And then there are those local tax breaks given to the 49ers for maintaining their facilities and programs in San Francisco. Are those government subsidies enough to constrain the 49ers from interfering with Kaepernick’s limited right to free speech?

Fortunately, we won’t have to waste money, emotion and time resorting to courts to find out. Because the 49ers have the good sense that Kaepernick does not. To give him his right of free speech—and his “safe space“—more accurately a piece of the 49ers’s safe space—whether or not Kaepernick’s entitled to it. Legally or morally.

When Michael Jordan wanted to be heard on the subject of Kaepernick’s deep convictions, he gave $1 million to Black Lives Matter causes. And he gave $1 million to Police Lives Matter Too causes. And then he had the good sense—and cents—to . . . be quiet. He put his money where his mouth was and let his wallet do his talking. Sometimes passive quiet says more. Kaepernick hasn’t figured that out yet.

But then Colin Kaepernick is no Michael Jordan.

Editor’s Note: Speaking of “safe space,” have you heard the latest on that? Not worth the “space” of a separate blog, but nevertheless wanted to share this quickie: A local court or school board (can’t remember which) on the east coast recently ruled that a teacher cannot refer to his (oops, probably should have said “its”) students as “boys and girls” rather than “students and scholars” because it may encroach on the safe space of a student or scholar who does not consider itself (see, I’m learning) a ” boy or girl.” Just trying to do my part to make sure we all remain politically correct. It isn’t easy. We have to remain diligent and on our toes at all times!

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