It used to be you could watch a football game without needing (or receiving) a civics lesson, but alas that is no longer the case. As recently as a few years ago, football was a sport with a solid ethical core of violence, courage, gambling, and cunning — an ethical core recently diluted by pesky things like health concerns and social responsibilities.
Former San Francisco 49ers quarterback Colin Kaepernick was an undeniably marvelous talent that once looked like the sport’s future (remember that Packers game???), led his team to a Super Bowl, squandered his chance at his sport’s shiniest trophy, became increasingly erratic, and lost his confidence with his head coach, in that order.
In any other era, he would have had the requisite shame to quietly descend into obscurity as a factoid on the losing side of Joe Flacco. Then, Kaepernick knelt during the “Star-Spangled Banner” last summer to protest and draw awareness to police brutality and police mistreatment of African-Americans. Several other football players followed.
When I first heard the Kaepernick news, a multitude of Kyles had viewpoints. The cynic in me thought it was a publicity stunt; the even bigger cynic in me thought it was a ploy to put 49ers coach Chip Kelly in a political position to have to start Kaepernick; the patriot in me thought how bad-ass it was that he was exercising his freedom as an American and how awesome it was to live in a country where someone could do that; the football viewer in me was annoyed that it was going to spawn an entire month’s worth1 of terrible opinions; the socially aware person in me thought it was a nice attempt to draw attention to a worthwhile issue; the skeptic in me questioned Kaepernick’s sincerity; the slacker in me didn’t care what the hell Kaepernick did with his time; the golden retriever in me wanted a slice of bacon; the political strategist in me wondered whether those who opposed Kaepernick’s viewpoint would be too trigger-happy to ignore the protests and thus draw attention to his position, inadvertently advancing Kaepernick’s goal; the nihilist in me thought, “It doesn’t matter anyway because nothing matters”; the realist in me knew it would be impossible to have any meaningful or nuanced discussion on free speech or the Kaepernick matter; the media critic in me knew it would be a challenge to rise above the avalanche of bullshit sure to be initiated by Kaepernick’s decision; and the aspiring writer in me assumed someone somewhere would write the piece I thought deserved to be written.
But, most importantly, the civil liberties advocate in in me took it as a fact that it was within Kaepernick’s freedom as an American to kneel or sit or lie down or roll over during the national anthem if he wanted. And, that is about the coolest thing ever and one of the top reasons I love this charming disaster of a country. So, I didn’t bother writing about it.
But, then a few funny things happened. The Kaepernick story somehow never went away — again, even though the best way to render Kaepernick irrelevant would have been just to ignore him. Despite some great ones (including from WFNY!), no one wrote the column I wanted to read, so I could just read it instead of having to feebly attempt to write it myself. Then, on Monday night before the team’s preseason game against the New York Giants, several Browns players knelt in prayer during the national anthem, bringing the sit/stand/kneel issue into my own small Ohio-related orbit.
It’s hard to discern exactly many players were involved. John Breech of CBS Sports said 10 players knelt in what he called the “NFL’s largest national anthem protest.” Cleveland.com listed Isaiah Crowell, Duke Johnson, Jabrill Peppers, Christian Kirksey, Seth DeValve, Jamie Collins, Kenny Britt, Ricardo Louis, and Jamar Taylor among the participants, and observed that DeShone Kizer, Shon Coleman, Britton Colquitt, and Jason McCourty stood with the players arranged in a circle. Deadspin proclaimed that Browns tight end Seth DeValve was the “first white player to kneel for the national anthem.”
I’ll share how two Browns players felt in their own words. Christian Kirksey explained why the players chose prayer as the vehicle for their statement in the video from Daryl Ruiter below. DeValve said he “wanted to support my African-American teammates today who wanted to take a knee. We wanted to draw attention to the fact that there’s things in this country that still need to change.” Both remarked on their respect for the country and those who have served it. DeValve called the United States “the greatest country in the world.” The team issued a benign but tacitly supportive statement at halftime, days after Hue Jackson had done much of the same.2
— Daryl Ruiter (@RuiterWrongFAN) August 22, 2017
— Daryl Ruiter (@RuiterWrongFAN) August 22, 2017
While the volume of discussion on the kneel protests has been at 11 for months and the nonsense factor a few decibels above that, I’ve yet to read any discussion that relies on the the best resource we have on the freedom of expression: the words of the United States Supreme Court.3 In the U.S., the freedom of speech is protected in the Bill of Rights — the First Amendment to the U.S. Constitution.4 While judges can be knuckleheads too — for sure — this country’s First Amendment cases are rich with eloquent and beautiful defenses of the freedom of speech. Just as importantly, the rhetoric contains tactics for countering opposing viewpoints that don’t involve social media tantrums. These cases are bountiful primary sources for impassioned defenses of one of our country’s most revered principles… and no one in the media thought to look to them for inspiration!
I’ve excerpted three Supreme Court cases. There are many more both in favor of and in opposition to the freedom of expression as it exists under fluid and ever-changing U.S. law.5 I’ll point out that — despite popular misconceptions — the First Amendment of the U.S. Constitution only protects Americans from the government interfering with your freedom of speech, not the NFL, your boss, or Instagram.6 But free speech as a principle exceeds that restriction on governmental power and interpretation of the law affects how we view it more broadly. These are three of the let’s say eight most informative cases when it comes to freedom of speech, including how it relates to the American flag. These excerpts are short on legal arguments, so you don’t have to be a lawyer to follow along, or a judge to be moved. Most of these cases deal with much graver and consequential subject matter than what someone does between beer commercials before an elaborate game of catch.
The first excerpt is from West Virginia State Board of Education v. Barnette, a case in which the Supreme Court found that a child who was a Jehovah’s Witness didn’t have to follow a rule requiring schoolchildren to salute the American flag. Jehovah’s Witnesses do “not go through the form of a pledge of allegiance to any flag,” as it is against their religion. The case was decided in 1943, in the middle of World War II. Via Justice Jackson:7
[W]e apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. 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.
The next quote is from Tinker v. Des Moines Independent Community School District. In this 1969 case, an Iowa public school made a rule forbidding students to wear black armbands in opposition to the Vietnam War. A few students wore these black armbands — peacefully, and with no disruption to school activities — and the school suspended them. The Supreme Court found the suspension unconstitutional, as the symbolic speech by the students was within their freedom of expression. From Justice Abe Fortas:8
[In our American] system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—was singled out for prohibition.
The last excerpt comes from Texas v. Johnson, a 1989 case from Texas. After a uhh “lively” march protesting the policies of president Reagan, Gregory Lee Johnson unfurled a flag, doused it kerosene, and set it on fire in front of Dallas City Hall. The state government of Texas prosecuted Gregory Lee Johnson for violating a statute that outlawed burning the American flag. The Supreme Court found the conviction unconstitutional as a violation of Johnson’s freedom of expression. While burning the flag is fairly gnarly, would it be hard to imagine a law forbidding someone to kneel during the national anthem? Justice Brennan wrote the following in 1989:
We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag—and it is that resilience that we reassert today.
The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. … We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by — as one witness here did — according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
As far as my own feelings, I’m of the opinion that compulsory patriotism is no patriotism at all.9 I’m not only thrilled but exhilarated to live somewhere where I don’t have to salute or bow or kiss a flag or sing a song because the state wants me to. I do it because I want to. Anyone can choose to kneel during the national anthem for a good reason or no good reason.10 It can be to raise awareness of social injustice, to protest the outcome of The Bachelor, or to demand that the stars and stripes be changed to a pile of flapjacks and a bowl of Cocoa Puffs. And the freedom to do that makes me feel patriotic as hell. I’m proud that the Browns players exercised their right as Americans to kneel in prayer on Monday night, and I think it was a nice gesture on Seth DeValve’s part to kneel with his black brothers to support them — isn’t that what good teammates do? Even had they taken positions that I thought were lousy causes like “deport sea otters” or “Friday morning meetings,” I would try to understand why they took positions I disagreed with so strongly.
And you don’t have to agree with me. If you want to cease watching NFL football because some players don’t waive their pom-poms during pregame rituals, that’s your prerogative — even if I think that’s the dumbest of 100 reasons to quit watching pro football. If you want to tell me to shove my [redacted] into [redacted], follow your dreams (but consider reevaluating them). The American flag is a cherished symbol because it lets you call it names and spread nasty rumors about it, and it’s still willing to give you a hug and buy you a drink afterwards. And if you think that Colin Kaepernick or Seth DeValve or Christian Kirksey “should” stand during the “Star-Spangled Banner,” more power to you. But your “should” isn’t our “must,” and that’s about the raddest thing about being an American I can imagine. Go Browns.
- Turns out, year’s worth. [↩]
- They largely echoed those sentiments on Tuesday. A fair if unenthusiastic response, in my opinion. [↩]
- Someone may have done it. There have been thousands of opinions written, posted, or transcribed from broadcasts. I confess I didn’t read all of them. It could be buried in my “Reading List”/Links Graveyard. [↩]
- And applied to the states by way of the Fourteenth Amendment … an unimportant distinction for non-lawyers. [↩]
- Also of note: While the United States is not a moral authority on a lot of things, a lot of other countries do look to the U.S. for guidance on matters of free speech. [↩]
- The First Amendment reads, “Congress [read: the government] shall make no law … abridging the freedom of speech … .” [↩]
- At 319 U.S. 624, 641-642. All the bold is my emphasis. [↩]
- At 393 U.S. 503, 508-511. [↩]
- Just as compulsory Patriot-ism is no patriotism at all — just ask Jamie Collins. [↩]
- Although it is nice to have a good one. [↩]