In September 2016, San Francisco 49ers quarterback Colin Kaepernick took a knee during the national anthem before the 49ers played the San Diego Chargers. This led to a firestorm of press coverage, national debate and involvement from politicians, talking heads, team owners and National Football League (NFL) players as other NFL players and athletes around the country also began to protest during pre-game ceremonies. As these events transpired, national press outlets and talking heads alike claimed that, as “employees” of their teams, professional athletes had a right to free speech in the workplace, i.e., players were permitted under the law to protest during the national anthem and, more importantly, could not be fined or otherwise disciplined by their employers (the teams and the NFL) for engaging in the exercise of free speech in their “workplace.” Unfortunately, this argument exhibits a fundamental misunderstanding of the law on free speech.

Despite the narrative being disseminated by the press and players, with limited exceptions employees do not have a right to free expression in the workplace. Put another way, employees can be separated from their employment for engaging in speech, so long as that speech is not protected by one of a few narrow categories.