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.        

TRUMP: TREASON? A CALL TO ACTION

The Responsibility of Patriots: Impeach, Vote Democrat in Mid-term, Take our country back!

We wrote recently about former State Secretary Madeleine Albright’s warning that facist rumblings around the world

threaten democracy.  We didn’t hesitate, and neither did the Secretary in her book Fascism: A Warning, to include President Donald Trump among those about whom we should have such concerns.  Things have only gotten worse since we shared the publication.  More reasons than ever exist for believing Trump existentially threatens democratic institutions in this country and the alliances the United States helped fashion that have kept the western democracies safe in the 70 plus years since the Second World War.

 

We need not detail Trump’s disgraceful performance in Helsinkiafter his meeting with Russian President Vladimir Putin.  Others have said plenty.  As American patriots, the three of us view Trump’s actions there as beyond the pale.  We’ve seen enough to declare Trump a Kleptocrat, if not an outright fascist.  His behavior calls for a response from all responsible Americans.

CLEAR AND PRESENT DANGER

As lawyers, we know the dangers of hyperbole.  Lots of people say Trump represents a danger to democracy.  They point to his race baiting after Charlottesville, his disgraceful practice of separating infants and children from their parents at the border as part of a cruel immigration policy, his attacks on the Muslim religion, and his war on the media, Fox News exempted.  What’s different now is Trump’s willingness to bow to a foreign adversary while

disparaging and fighting with our allies – the countries that have stood with us and behind us throughout the post-war era.  No American should forget European members of the North Atlantic Treaty Organization (NATO) came to our aid after September 11, 2001.

Yet, before he went to Finland and groveled next to Putin, there was Trump picking fights with Germany, Great Britain, and other NATO members.  He even audaciously labeled the European Union our “foe.”  Trump behaves as if he’d prefer helping Putin dissolve NATO, leaving the Russian President free to annex Eastern European states and perhaps even reconstitute the old Soviet Union, no doubt a goal of this ruthless ex-KGB agent.  Even if Putin can’t accomplish that, Trump has already helped him diminish the influence of the United States.  Some European countries say they can no longer depend on American leadership.

A TIME FOR ACTION: WHAT TO DO

As we’ve pointed out before in our blogs, the three of us don’t speak with one voice on many issues.  We are different people who, from time to time, express a variety of political positions and preferences.  Yes, we’re mostly Democrats, but we’re not the same kind of Democrat, and we don’t see every issue in partisan terms.  We think of ourselves as patriots and though we each live our patriotism differently, we put country before party.

Having said that, we acknowledge seeing only a partisan solution to the danger Donald Trump’s behavior poses to the country we love.  Ironically enough, in this circumstance, we take our cues from several Republicans.

Steve Schmidt ran John McCain’s 2008 Presidential campaign.  Schmidt has been,throughout his political career

a dedicated adherent to the Republican Party and the conservative movement.  He worked for George W. Bush and helped put two conservative justices on the U.S. Supreme Court. Schmidt now, however, advocates a vote for Democratic candidates in this fall’s mid-term elections as the only way to undo the grave damage he sees Trump doing to America.  Schmidt, at least for the moment, has withdrawn from the Republican Party and sees voting Democratic as the proper response to Trump’s behavior.  Columnist George F. Will, another prominent Republican voice of long standing influence, echoed similar sentiments, urging independents and non-Trump Republicans to vote in a way that will “substantially reduce” the size of the Republican caucus in Congress.

Schmidt and Will see the same thing we do.  Democratic control of the House would open the possibility – even the probability – of impeachment proceedings against Trump.  We wrote about the mechanisms of impeachment in June 2017, noting that process can’t start without Democrats holding the levers of power.

Even if Congress doesn’t remove Trump from office (imagining the two-thirds vote in the Senate required for conviction remains difficult), an impeachment inquiry could reign in Trump’s behavior.  Because House Republicans have stood so strongly behind him, his behavior has gone unchecked.  Democrats who oppose him in Congress sometimes seem like they’re howling in the wind.  Trump hasn’t had to respond to subpoenas, release tax returns, or answer for financial and policy excesses.  With Democrats in control of even one house of Congress, things will change.  That howling may soon resemble a pack of hungry wolves on the trail of a wounded animal.

We think it possible, in fact, Special Counsel Robert Mueller already has much of his case against Trump made.  Mueller, a smart Washington operative, knows putting out his report now, with Republicans remaining in control of the House where impeachment must begin, means that report would 

likely get relegated to the trash can.  If Mueller believes he can’t indict a sitting President, making impeachment the only remedy for Trump’s crimes, Mueller may well have decided he’ll wait and present his report to a more receptive audience.  We can’t imagine a more receptive audience than a Democratic majority in the House of Representatives.  That’s our dream and Trump’s worst nightmare.  

That’s what we think. Tell us what you think.