NFL flag police flunks free speech test
The United States is in the grips of a free-speech paradox. At the same time that the law provides more protection to personal expression than at any time in the nation’s history, large numbers of Americans feel less free to speak. The culprit isn’t government censorship but instead corporate, community and peer intimidation.
Conservatives can recite the names of the publicly shamed from memory. There was Brendan Eich, hounded out of Mozilla for donating to a California ballot initiative that defined marriage as the union of a man and woman. There was James Damore, abruptly terminated from Google after he wrote an essay attributing the company’s difficulty in attracting female software engineers more to biology and free choice than to systemic discrimination. On campus, the list is as long and grows longer every semester.
It is right to decry this culture of intolerance and advocate for civility and engagement instead of boycotts and reprisals. The cure for bad speech is better speech — not censorship. Take that message to the heartland, and conservatives cheer.
Until, that is, Colin Kaepernick chose to kneel. Until, that is, the president demanded that the NFL fire the other players who picked up on his protest after he was essentially banished from the league. That was when the conservative mob called for heads to roll. Conform or face the consequences.
On May 23, the mob won. The NFL announced its anthem rules for 2018, and the message was clear: Respect the flag by standing for the national anthem or stay in the locker room. If you break the rules and kneel, your team can be fined for your behavior.
This isn’t a “middle ground,” as the NFL claims. It’s not a compromise. It’s corporate censorship backed up with a promise of corporate punishment. It’s every bit as oppressive as the campus or corporate attacks on expression that conservatives rightly decry.
But this is different, they say. This isn’t about politics. It’s about the flag.
I agree. It is different. Because it’s about the flag, the censorship is even worse.
One of the most compelling expressions of America’s constitutional values is contained in Justice Robert Jackson’s 1943 majority opinion in West Virginia State Board of Education v. Barnette. At the height of World War II, two sisters, both Jehovah’s Witnesses, challenged the state’s mandate that they salute the flag in school. America was locked in a struggle for its very existence. The outcome was in doubt. National unity was essential.
But even in the darkest days of war, the court wrote liberating words that echo in legal history: “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.”
Make no mistake, I want football players to stand for the anthem. I want them to respect the flag. As a veteran of the war in Iraq, I’ve saluted that flag in foreign lands and deployed with it proudly on my uniform. But as much as I love the flag, I love liberty even more.
The NFL isn’t the government. It has the ability to craft the speech rules its owners want. So does Google. So does Mozilla. So does Yale. U.S. citizens can shame whomever they want to shame.
But what should they do? Should they use their liberty to punish dissent? Or should a free people protect a culture of freedom?
In our polarized times, I’ve adopted a simple standard, a civil liberties corollary to the golden rule: Fight for the rights of others that you would like to exercise yourself. Do you want corporations obliterating speech the state can’t touch? Do you want the price of participation in public debate to include the fear of lost livelihoods? Then, by all means, support the NFL. Cheer Silicon Valley’s terminations. Join the boycotts and shame campaigns. Watch this country’s culture of liberty wither in front of your eyes.
The vice president tweeted news of the NFL’s new policy and called it “#Winning.” He’s dead wrong. It diminishes the marketplace of ideas. It mocks the convictions of his fellow citizens. And it divides in the name of a false, coerced uniformity. Writing in the Barnette decision, Justice Jackson wisely observed, “As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.”
The NFL should let players kneel. If it lets them kneel, it increases immeasurably the chances that when they do rise, they will rise with respect and joy, not fear and resentment. That’s the “winning” America needs.