Taking a knee for the First Amendment
For the last couple of weeks, Donald Trump has done a very good job of distracting people from the real reason why Colin Kaepernick – and now scores of other football players – have taken a knee during the National Anthem. It’s probably one of the few things Trump has done well since he took the oath of office.
That oath committed Trump to preserve, protect and defend the Constitution of the United States of America. Instead, he has deliberately ignored the First Amendment – or, more likely, he is unaware of what the First Amendment says. In the process, he has distorted the action of those football players, turning their stance into a symbol of hatred for their flag and – by extension – their country.
The First Amendment guarantees the right to express oneself as one chooses. In the case of saluting the flag, that means that every citizen in this country has the right to sit, stand, kneel or whatever else they chose. Kaepernick and others chose this stance as a form of peaceful protest to draw attention to the unjustified shooting of black men in the streets of our cities and towns.
Because they are Americans, they have every right to take that position. This argument has already been fought and won in the United States Supreme Court. In the case of the Minersville School District vs. Gobitis, the Court initially upheld the State’s power to expel students, who were Jehovah’s Witnesses, for refusing on religious grounds to salute the flag, stating that “Conscientious scruples have not. . . relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”
Three years later, that ruling was overturned in a six-to-three decision by the Court, basing its reversal on the tenet of freedom of speech. The Court, in effect, said that, unless the passive behavior – such as failing to salute the flag or taking a knee – posed a “clear and present danger that would justify an effort even to muffle expression,” the State had no right to expel or otherwise punish those students.
While the NFL is not the State and can make future employment conditional upon its players’ decision to obediently stand or not during the anthem, they will still be infringing upon the First Amendment if they penalize their players for kneeling. Does the NFL really want to take that stance? If for no other reason, consider the optics. A lot of wealthy white owners of football teams – overwhelmingly populated by African American players- using coercive methods to get teams to stand for the Anthem? For ratings? Revenue? Certainly not for freedom.
If the NFL disregards the First Amendment and tries to force their players to stand during the National Anthem, they are every bit as culpable as Donald Trump in trampling their players’ First Amendment rights.
Here’s the real deal, Donald. In this country, every citizen has the right- the freedom – to respond to the flag – a symbol of that freedom –in whatever way they choose. We all know you don’t read history, Donald, but you do watch TV. Maybe at some point in your 70 years, you happened to watch a corny little romantic film called “The American President.” In that film, the President- played by Michael Douglas – delivers an impromptu speech about civil liberties, correctly asking the question:“You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest.”
Football players taking a knee in the spirit of the First Amendment does not pose a clear and present danger. Sadly, for Americans and the rest of the world, we cannot so assuredly say the same of the man in the oval office.