Legal & Law

Freedom of speech? Maybe not so free as you think

In an open letter, attorney/former judge Mike Seiler sounds off about the Curious Case of Colin Kaepernick’s Career Conundrum
Mike Seiler is a Houston area-based attorney specializing in all aspects of criminal and civil litigation.
( | Press Release | 2016-09-29 19:51:28 )
Everyone’s up in arms, one way or the other, about Colin Kaepernick and his refusal to stand during the national anthem. Other players are following suit, while other coaches are benching entire squads who refuse to stand. The fight over this pretty much revolves around the battle cry, “I’m exercising my First Amendment rights, and you can’t stop me!”
The problem here is, a little knowledge is a dangerous thing. As one of the few people who has been involved in all three major aspects of a court – as a prosecutor, as a defense attorney and as a judge – I have seen this in action.
People quote the First Amendment – also known as “freedom of speech” – in an effort to have carte blanche over saying or expressing anything and everything they want in any circumstances and not be held liable for it. In reality, the First Amendment to the Constitution of the United States of America offers no such legal freedom.
The amendment protects citizens from GOVERNMENT interference in their freedom of speech. But it has no power over the private sector.
For example, there’s the classic, “You can’t shout ‘FIRE!’ in a crowded theatre.” This is correct. There are laws against causing a mass panic or riot or otherwise dangerous situation. There are still certain words you can’t say on broadcast television or risk being fined or shut down. Even trademark and copyright laws forbid you from saying or printing certain words in certain circumstances. You can’t walk into your boss’ office and threaten their lives unless they give you a raise. And you can be fired if you say the wrong thing to the wrong client. But in none of these circumstances are your rights being violated.
Colin Kaepernick and his ilk are employees of their respective teams, which in turn answer to the National Football League. While the league has issued a statement maintaining they wouldn’t force any members to stand during the anthem, they would have been completely in the right to insist Kaepernick do so or risk termination for cause. I could quote a half-dozen legally sound reasons that he wouldn’t be able to sue over in return for wrongful termination.
I’m not saying you have to stand during the national anthem. I’m not saying you have to utter the words “Under God” while reciting the Pledge of Allegiance in a public place. I AM, however, saying to stop using the First Amendment as a blanket excuse to think you can get away with saying what you want when you want with impunity. You may find yourself on the wrong side of the law with no recourse except to call an expert lawyer who actually knows the legal definitions of what you can and can’t do.
“An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” – Oliver Wendell Holmes, Jr., 1891

Mike Seiler is a Houston area-based attorney specializing in all aspects of criminal and civil litigation. He began his legal career as a prosecutor, working for the Montgomery County District Attorney’s Office for 16 years before being appointed to the 435th District Court by Governor Rick Perry. He resigned from the bench in 2016. Today, Seiler enjoys traveling around the nation representing clients in all types of cases. He is one of very few attorneys in the region that have enjoyed successful careers in all three aspects of a courtroom – prosecutor, judge and defender. For more information on Seiler, visit or call (281) 419-7770.

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