An Analysis Of The Chris Kluwe Controversy And The Right To Speak One’s Mind

Former NFL punter Chris Kluwe, who played for the Minnesota Vikings until the Vikings released him before the start of the 2013 NFL season, recently made headlines when he claimed that the Vikings cut him because of his well-publicized support for gay rights in Minnesota, not because of his football performance.  It’s difficult to research this question because there are 32 NFL teams and thousands of former NFL players, but this has to be a rare, if not the only, instance of an NFL player asserting that his team released him under circumstances that make it sound an awful lot like a wrongful termination case.  Kluwe has stated that he hopes litigation over his release can be avoided, but what exactly would his legal rights be?  I can’t analyze how Minnesota state law would apply to this question, but I can look at it from a federal legal angle.

Kluwe likely has no federal legal rights because federal law currently does not recognize sexual orientation as a protected characteristic.  Federal law prohibits discrimination based on race, sex, religion, age, disability, and national origin.  It’s also illegal under federal law for an employer to fire an employee because that person opposes workplace discrimination along those lines.  But even if federal law did recognize sexual orientation as a protected characteristic, that probably wouldn’t help Kluwe because he was taking a political, not workplace, stand regarding gay rights.  Moreover, Kluwe would probably be considered an independent contractor, not an employee, of the Vikings.  The federal civil rights/employment laws only protect employees, not independent contractors.

Okay, so Kluwe was making a political point.  That’s as American as can be; it therefore must be illegal for a private business to terminate someone because of that person’s politics, right?  Nope. While every U.S. citizen is entitled to the rights guaranteed by the First Amendment, including the right to free speech, free speech rights can only be asserted against the government.  The right to free speech does not apply to private settings that lack government involvement, such as your living room or a private business.  Thus, for private employers and businesses, people have no First Amendment right to say or do whatever they wish.  Only government employees are protected from retaliation for exercising their free speech rights.

I’m sure that if Kluwe sues the Vikings he’ll assert some sort of breach of contract claim.  I can’t analyze that because I don’t have a copy of Kluwe’s Vikings contract.  But there’s enough prestige and publicity waiting in the wings on this one that a team of lawyers will likely bend over backwards to find a way to bring a meritorious lawsuit against the Vikings if Kluwe so chooses.

No matter how Kluwe comes at the Vikings in a lawsuit, the ultimate question will always be: Why did the Vikings draft a punter in 2013 and then replace Kluwe with that rookie punter?  That of course is what cases like this always come down to – Why did the defendant do what it did?  Was it for legitimate reasons or because of spite or ill-will?  The Vikings will always maintain that they released Kluwe solely for football performance reasons, i.e., the punter they drafted was better than Kluwe, and NFL teams rarely keep two punters on the roster, so Kluwe was released.  Kluwe will argue the opposite, that his football performance was fine and it was his public support of gay rights that cost him his Vikings position.  If nothing else, such a lawsuit should provide a rare and fascinating deep look into how an NFL team makes final roster decisions.