Speech that isn’t free

One of the more gratifying sto- ries in the National Football League (NFL’s) offseason has been the ongoing (at time of writing) unemployment of quarterback Colin Kaepernick.

Kaepernick is, of course, the fellow who started the obnoxious practice of kneeling during the playing of the national anthem as a form of protest against racism, police brutality, capitalist exploitation and whatever else he could think up. He naturally became a hero of the “Black Lives Matter” crowd and other lefty movements.

Kaepernick’s contract with the San Francisco 49ers ran out at the end of the past season, leaving him a free agent. The funny part is that, in a league starving for competent quarterbacks, nobody seems to want him, even as a backup.

Social justice warriors masquerading as sportswriters claim “Kap” is being “oppressed” because of his “brave” protest against oppression. But those of us who don’t fall into the social justice warrior camp and tend to see kneeling before the anthem as an offensive form of moral preening find his plight supremely satisfying.

Those defending Kaepernick and claiming he is being mistreated misunderstand the principle of freedom of speech. Kaepernick himself apparently badly misunderstood the likely consequences of his exhibitionism.

The First Amendment of the Constitution protects speech and press by preventing government from punishing it. With only a few modest exceptions—yelling fire in a crowded theater, libel/slander, etc.— we are free to pretty much say or publish whatever we wish, and certainly free to kneel during the Star Spangled Banner, even to burn what it celebrates if we wish.

In other words, the First Amendment applies to the relationship between government and the individual. As columnist Karol Markowicz succinctly put it, “If Donald Trump doesn’t like it when Saturday Night Live makes fun of him, he can tweet about it. He can’t send a police force to arrest Alec Baldwin.”

The protections provided by the First Amendment are perhaps most necessary in cases of unpopular speech, which is why the courts have protected the rights of Nazis to march through Skokie and Westboro Baptist Church parishioners to protest military funerals.

But what the First Amendment doesn’t do is protect people from the consequences of such speech—if you walk into your boss’ office and call him nasty names, you are likely to get fired, so too if you say things that offend advertisers or customers. The husband who calls his wife fat and is served with divorce papers can’t find solace in the Constitution.

That so many people seem to get such things confused suggests that there is now an inverse relationship between knowledge of the sources and nature of rights on the one hand and the tendency to claim all kinds of bogus ones on the other.

So, again, we are free to say just about whatever we wish, but others are also free to fire or ostracize us or not buy our records or football jerseys if they are offended by it.

As for Kaepernick himself, the mistake was made in grandstanding from a position of weakness, which is another way of saying talent matters and he doesn’t have enough of it.

Kaepernick began his career in promising fashion with the 49ers, even to the point of being oppressed by a six-year, $126 million contract extension. Alas, it was all downhill from there, to the point of riding the pine by the time he took that infamous knee.

In all, it wasn’t a particularly prudential time to climb onto (or kneel upon) your political soapbox; wearing a T-shirt with Fidel Castro on it while holding forth at a press conference about American oppression didn’t exactly help matters, either.

The more interesting point, however, is that Kaepernick, however mediocre, is probably still better than a lot of guys currently serving as backup quarterbacks in a chronically quarterback-scarce NFL.

For instance, the current backup for the Dallas Cowboys is a fellow named Kellen Moore with a notorious noodle-arm, who has started all of two regular season games and has a career passer rating of 71.0. Kaepernick, by contrast, has started 64 games, has a 4-2 playoff record, and sports an 88.9 passer rating.

But the Dallas Cowboys are also “America’s Team,” and none of their players dared last season to kneel during the anthem, for which a pink slip from owner Jerry Jones would have been the likely quick reward.

NFL fans are a fairly conservative and patriotic bunch, even those in Nancy Pelosi land, and Kaepernick probably isn’t talented enough to justify the backlash that would ensue were a team to sign him to stand on the sidelines with a clipboard.

That employee who calls the boss names might be cut some slack if he brings in more customers than he scares away. One who alienates customers (fans) and doesn’t add much to the win column, like Kaepernick, just gets cut.

Kaepernick may have found a new, sufficiently desperate team by the time this sees print, but the point remains the same—government has to tolerate and even protect obnoxious speech. But NFL teams and the rest of us don’t have to pay for it.