Considering the NFL’s new policy that requires players on the field to stand for the National Anthem or else be subjected to a fine, I would like to dedicate today’s blog post to the first amendment.
Many people are citing the first amendment law as a basis for why players should be able to silently protest by kneeling on the field during the song. Others are saying that it’s unpatriotic to kneel during our nation’s anthem and that it disrespects service men and women fighting for our country. Others, like Golden State Warriors coach Steve Kerr, are citing this new ruling as an act of “fake patriotism, nationalism” used to incite fear within the organization’s “fanbase.”
While there are many arguments on both sides of this issue, I’d like to look at what the first amendment says, what it has meant throughout history, and what it should mean today.
According to the first amendment to United States Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This amendment is one of the very things that makes the United States such an important model for democracy. At the time this was created, the Founding Fathers were fighting against the harsh laws set forth by King George III against the colonies. They established the Bill of Rights as the first ten amendments to the Constitution to ensure that the rights of the people in their new government were not going to be infringed upon by a potentially corrupt government ever again.
And, thus began the Great American Experiment.
Since the establishment of the First Amendment as written above, there have been several instances during which this law was cited as a defense during Supreme Court cases. One such case, Brandenburg v. Ohio in 1969, established the precedent for the “clear and present danger” doctrine that is utilized to justify the actions taken by many Governments for restricting the right to freedom of speech. It gives states the right to limit speech that “is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action” (American Library Association). In these cases, there must be a clear threat to the safety of others for any government to restrict the freedom of speech. Last time I checked, kneeling hurts no one, except maybe the person doing the kneeling, and incites no lawless action. It’s a peaceful protest.
One of the more interesting sets of precedents that relates to the NFL decision is the set marked by the ALA as “The Right to Dissent.” One such case is West Virginia State Board of Education v. Barnette in 1943 in which the Supreme Court struck down a regulation that required all students to salute the flag at school during the Pledge of Allegiance. In the ruling, the Justices made a point to uphold the right to dissent from any such display of patriotism claiming it, too, is a form of freedom of speech. In their statement, they outlined, “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” So, in 1943, the Supreme Court saw the importance of understanding the right of people to dissent in certain social practices is something that is guaranteed under the Constitution. It may not be popular to dissent, but that doesn’t mean that we can withhold the rights of those who decide to abstain.
But, perhaps the most important Supreme Court case regarding the first amendment and this NFL debate is Texas v. Johnson in 1989. In this case, a man was punished for burning the United States flag, and, although we may not agree with the practice of doing so, his right to burn the flag was protected as a form of political protest. In this case, the Justices claimed, “A bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” I don’t know about the rest of you, but this statement rings all too familiarly in the halls of our political discourse today.
Now, I have outlined several instances where the first amendment was cited and used to uphold the rights of citizens of our country, but these were all cases of a government entity versus a private citizen. The NFL is a private corporation and can technically make any policy it wants if it doesn’t violate the law of the land. So, at best, the argument for the violation of the first amendment rights is a gray area in this case.
What makes it grayer is the statements of the President of the United States. First, as president, Donald Trump has more to worry about than the National Football League. There is a laundry list of items on his agenda that should be directing his focus, but because this is a hot-button topic currently trending on Twitter, nothing else matters until the president throws his opinion into the mix to keep his Twitter following up.
On Fox News on Thursday, the president stated that “‘You have to stand proudly for the National Anthem or you shouldn’t be playing. You shouldn’t be there. Maybe you shouldn’t be in the country.’” And, with that statement, the president has taken a policy made by a corporation for its employees into an issue for public policy debates. By making a simple statement as the President of the United States, Trump has essentially made it easier for any lawyer to argue against this policy based on the first amendment rights. He has made it a government issue because he put his opinion out there as the opinion of the President of the United States, which essentially translates to the public opinion of the government of the United States.
Technically, the NFL didn’t make a new law by which all citizens must abide; instead, they instituted a policy by which all employees must comply or else receive a consequence thereof. Is it a shitty policy? Yes. Is it illegal? Eh, maybe if argued correctly. The fact of the matter is: if a player or organization wanted to make this a larger issue, they could do so. In my opinion, they should do so because we can’t keep living in a country that offers exceptions to the law for certain people and not for others. We need to accept that, even though football players are there to play a game, they are still people with opinions. They should be allowed to express those opinions without fear of retribution because, unlike the President of the United States, they are private citizens.
Because if our president can say anything he wants without losing his job or being fined for doing so, why can’t a fucking football player take a knee without that same fear?