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.        

STACEY ABRAMS AND THE GEORGIA GOVERNOR’S RACE: A Black Woman Takes Aim at the Peach State’s Top Prize

While the U.S. House of Representatives races, and the Democratic attempt at flipping the necessary 23 seats for a majority may determine the nation’s immediate political future, the race for Governor of Georgia might say much more about the long-term state of our politics than any other contest this fall. 

The importance of the race lies not just in the possibility former Georgia House Minority Leader Stacey Yvonne Abrams could become the nation’s first black woman governor.  That’s significant, no doubt, but if she defeats her Republican opponent, Georgia Secretary of State Brian Kemp, the way she wins could mean a lot more than a race and gender breakthrough.  

A Different Southern Democrat 

Abrams, who’s on the August 6/August 13 , 2018 cover of Time, won Georgia’s Democratic gubernatorial nomination with a decidedly different approach from Democrats in the South since the GOP’s dominance of the region took hold in the 80s and 90s.  Abrams defeated another former Georgia state representative, Stacey Evans, 3-to-1, with a decidedly progressive message and campaign strategy.  Rather than running to the center, Abrams aimed both her message (public education, prison reform, gun safety, health care, liberal positions on abortion and gay rights, expanded public transportation) and her campaign resources at blacks, Georgia’s growing Hispanic population, and young, progressive white voters.  Abrams and her team think they can win the general election with a finely tuned organization that turns out that coalition.

Abrams’s approach depends heavily on an expensive, well-run ground game. Even political novices know much of the electorate Abrams needs often skips mid-term elections.  Democrats got creamed in 2010 and 2014 during the Obama era because the young, progressive, and minority group voters who propelled the election and re-election of the nation’s first black president stayed home in those mid-term years. Abrams thinks she can turn out those voters and make up the 200,000 votes by which centrist Democratic candidates like Michelle Nunn, the daughter of former U.S. Senator Sam Nunn, and Jason Carter, the grandson of former President Jimmy Carter, lost in statewide races in recent years. 

The last two presidential results, and the state’s changing demographics, give Abrams hope.  Trump beat Hillary Clinton in Georgia by only five points and Barak Obama lost to Romney by seven and a half.  The Atlanta suburbs, teeming with increasing numbers of voters of color and liberal whites who’ve moved in from other states, give Abrams a solid base.  To win, many analysts think, in addition to getting 90 % or more of the black vote, she must execute her get-out-the-vote plan well enough to make 40% of the total vote non-white, roughly the percentage of Georgia’s non-white voting age population.  She also must get about 25% of the white vote, considered doable if she can turn out those liberals in the Atlanta suburbs.

Baggage 
Abrams presents as something of a Renaissance woman.  In addition to her political career, she’s worked as a tax lawyer, run several businesses, and written novels under the pen name Selena Montgomery.  She hails from a two parent home in which her mother, father, and two siblings earned college degrees, though one brother served prison time.  Some contend this family background gives her credibility with middle class and under class voters.  Her time in the Georgia legislature suggests a capacity to work both sides of the aisle.

Abrams isn’t perfect though, and Republicans are already going after her flaws.  Aside from the “D” behind her name in a state that hasn’t elected a Democratic governor in two decades, vulnerabilities in her personal story provide fertile ground for attack ads.  She’s admitted owing the IRS $50,000 in back taxes and having $170,000 in credit card and student loan debt (Abrams holds degrees from historically black Spelman College, the Lyndon B. Johnson School of Public Affairs at the University of Texas, and Yale Law School).  She says much of the debt accumulated because of help she gave her parents after college, but critics still think they can exploit her personal financial situation.

The Election   

Some early polls show Abrams even or ahead in her race with Kemp, a Trump-endorsed right winger who, in his runoff contest with Lt. Governor Casey Cagle, talked more about standing for the national anthem, guns, and immigration, than about Georgia policy issues.  All indications point to a close race, though Kemp stands as the favorite in most quarters.  Abrams will have a well-funded campaign, thanks both to her network of small donors and contributions from progressives across the country. Abrams knows grassroots organizing and her opponents will not outwork her. The race, shaping up as one of this year’s most expensive political contests, might tell us more about the nation than any other campaign this cycle.

Source:  realclearpolitics.com 

We’re keeping a close eye on this race, not just because of the historic possibility of seeing an African-American woman ascend to the governorship of a southern state.  The Abrams strategy holds enormous potential for progressive electoral causes in the United States.  Abrams thinks she can win with a coalition of progressive whites and people of color.  As with Doug Jones in last year’s Alabama Senate race, she hopes for a big turnout of black women.  If Stacey Abrams pulls this off, she will have written the playbook for putting Democrats in power at the Presidential, Congressional, and statehouse levels.