The First Amendment is an important one. It is first, after all. Although most Americans can agree that freedom of speech is foundational to our country, what is considered protected speech is a fairly complicated area of law. It’s not just words – conduct, dance, art, clothing, donations, and symbolic gestures are all considered speech (among other things). So too is the right not to speak.
Which brings us to our current political climate as it relates to one of our nation’s oldest and most revered pastimes: football. A player’s right – indeed, any citizen’s right – to stand, not stand, kneel, sit, abstain, etc. during the National Anthem is a protected right under the First Amendment. The Supreme Court decided almost this exact situation years ago in West Virginia Board of Education v. Barnette, a 1943 United States Supreme Court case.
During WWII, West Virginia’s Board of Education decided to amend its laws and require that all teachers and students must salute the flag and any refusal to do so would be considered insubordination and result in expulsion, which in turn could lead to criminal prosecution, fines, and jail. Specifically, students and teachers were required to raise their right hand, keep it raised and stiff, while repeating the pledge of allegiance.
Marie and Gathie Barnett, two children in West Virginia who were also Jehovah’s Witnesses, refused to salute the flag and recite the pledge. (Jehovah’s Witnesses’ religious beliefs forbid them from saluting or pledging to symbols). Accordingly, the two kids were expelled and their parents filed suit in United States District Court, citing the First Amendment. The lower court agreed this was a violation of the Constitution and so did the Supreme Court.
In a 6-3 decision the Court ruled that it is unconstitutional to require students and teachers to salute the flag. The Court found that saluting the flag is conduct, or a “form of utterance” and therefore is considered protected speech by the First Amendment. Forcing salutation of the flag is “compulsory unification of opinion” and is directly contrary to the very purpose of the First Amendment.
With that little bit of background, let’s fast forward to the current state of affairs. Barnette remains good law and has never been overturned. The right to refuse to salute the flag – in whatever form – is a constitutional right. When Colin Kaepernick decided to take a knee during the national anthem, that was his fundamental right. When the entirety of the Seattle Seahawks sat in the locker room during the national anthem, that was their collective fundamental right. Every player, every team owner, every coach, and every citizen has an inalienable right to do pretty much whatever they’d like to do while the national anthem plays.
There is one caveat: as the NFL Is a private organization, it could technically enact a policy requiring its players to stand during the national anthem, if it were so inclined. Barnette extends to public/government organizations, such as the school at issue in West Virginia. So far the NFL appears to be supporting its players’ decisions to protest, or speak, in whatever manner they wish and has not enacted any kind of policy compelling participation. It is shocking, however, that the leader of the Free World and upholder of the Constitution and its laws is encouraging the private organization to suppress speech in this way in the name of “patriotism.”
Let us not forget that our country is founded on protest, dissent, and ultimately the desire to be a free people. We started by throwing tea into the Boston Harbor – thus began the concept of the Patriot, which notably we now have an NFL team named after. Union protests have led to safer work environments for our citizens. Suffragists picketing and lobbying led to the 19th Amendment. Bloody Sunday, and the horrific violence it showed on national TV, ultimately led to the Voting Rights Act and the Civil Rights Act. This is the quickest and shortest list of protests this country has endured and doesn’t give the protesters anywhere near the credit they deserve, but the point is still poignant: protest IS patriotic.
Maybe if the national government had paid attention to the tragic killings of Freddie Grey, Philando Castile, Charleena Lyles, Alton Sterling, Michael Brown, Trayvon Martin, Eric Garner, all those who have died at the hands of the police, we wouldn’t have to pay any attention to what our football teams are doing while someone sings about our “land of the free.”