STANDING OR KNEELING FOR THE NATIONAL ANTHEM: WHO’S A REAL PATRIOT?

Football season is upon us!  We’re ready to enjoy the nation’s most compelling sport, right?  As college football analyst Lee Corso might say, however, ‘not so fast.’  In addition to chattering about blitz packages and pass patterns, players, fans, and media once again find the sport embroiled in the now-racialized criminal justice/national

anthem debate.  We have, of course, President Donald Trump largely to thank for that.  By referring to African-American players who protested as “sons of bitches” and suggesting their summary firing, Trump racialized the protest and further divided the nation.

We feel compelled to discuss this topic because the issues underlying the debate symbolize important concerns in America’s political and legal fabric.  Earlier, on a different issue, we proudly called ourselves patriots because of our commitment to protecting this country’s democratic institutions and principles.  Those institutions and principles assure rights and opportunities for all Americans.  The criminal justice/national anthem debate implicates critical American values, so we will have our say.

The Kneeling, Blackballed Quarterback

In 2016, San Francisco 49ers quarterback Colin Kaepernick,

a biracial American, began kneeling during the national

anthem in protest of racial injustice in the United States, including police shootings of young black men.  Kaepernick’s entire story is complex and we won’t detail it here.  Suffice it to say kneeling eventually helped get him blackballed and he hasn’t played since late 2016. Because no team would sign him, Kaepernick filed a lawsuit against the NFL.

Other players, nearly all African-American, began kneeling.  That was controversial,

of course, but when Trump slammed them at an Alabama political rally in 2017, he exposed other racial wounds in American society.  The image-obsessed NFL and its mostly Trump-friendly owners got nervous and began taking actions that would curb the protests.  The league at one time offered players financial support for community projects in exchange for ending the protests.  During this past off-season, the league formulated a rule requiring players to stand for the anthem or remain in the locker room while it’s played.  Some teams, however, said they’ll fine players if they don’t go onto the field and stand for the anthem, negating the league-mandated locker room option.

Free Speech?

Protesting players and their supporters often cast this as a free speech issue. It is and it isn’t.  As lawyers,we certainly

know the First Amendment to the United States Constitution  likely doesn’t apply in this circumstance.  The First Amendment operates as a limit on government, not as a general,

across-the-board grant of personal free speech rights applicable in all situations.  The NFL isn't the government.  No court, at least not on First Amendment grounds, can keep the NFL from enforcing whatever speech limits it wants on its players in the absence of a collective bargaining agreement addressing the issue. 

That legal principle doesn’t, however, end the inquiry. We’d note the NFL’s extensive entanglement with government, potentially suggesting a court should treat it as a state actor for free speech purposes.  Nearly every NFL team plays in a stadium built, at least in part, with tax dollars.  Extensive police presence at league games gives them the flavor of state-sponsored events.   The NFL’s close ties with the U.S. military only add to the connection between the league and the federal government.

Leaving aside this admittedly novel legal argument, the NFL has become so pervasive in our society that squashing a player’s ability to comment, symbolically, on an important political and social issue seems outdated, outmoded, and fundamentally unfair.  Entertainers, political figures, and business people engage in protected, symbolic speech all the time.  What makes professional athletes different?  The fact not many players in other leagues haven’t protested in the same way doesn’t really answer that question.

                        

Zero Sum Game?

While the protests started as an effort to bring attention to race discrimination in the criminal justice system, almost single handedly, Trump turned them into a debate about who is patriotic and who isn’t.   Stand for the anthem and you’re a patriot, kneel and you’re not.  We should not forget our history.  Throughout the life of this nation groups of all kinds – blacks, women, religious minorities, the LBGTQ community -- have taken the route of peaceful, non-violent protest in securing rights majorities take for granted.  Protest has made our nation stronger.

During the Vietnam era, war protesters regularly wrapped the flag around their dissent.  They argued the best way to honor America, its traditions, and its institutions was ending our disgusting involvement in an immoral war that ultimately didn’t serve the national interest or enhance national security.  While the Johnson and Nixon administrations equated patriotism with support for the war, dissenters declared themselves the real patriots.

We see a parallel between Vietnam and the national anthem debate of today.  Maintaining the right to bring grievances against the government stands at the core of our democracy.  This nation rests on that foundation.  The fact the NFL technically isn’t the government doesn’t matter.  The NFL is such a big player in American life, if protests at NFL games represent the best way to challenge unjust police shootings, we should have protests at NFL games.  If players can’t protest at NFL games now, in the future, where else will some fascist-leaning leader say we can’t have protests?   

Think about that.