By insisting that NFL owners should fire players who kneel during the national anthem, President Trump may have actually validated their exercise of free speech under the First Amendment.
The President, with his business background, frames the situation as employers directing their employees, but if I understand the law it’s more complicated than that. The New York Times reported that federal law protects workers showing solidarity with other workers. After the President’s tweets and speeches, kneeling players can legitimately say they’re supporting each other after being targeted for expressing distress at the treatment of African-Americans in the country.
In 1943, an eloquent Supreme Court decision specifically guaranteed that students cannot be forced to salute the Flag. It reads in part, “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
It continues, “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."
But despite this decision, a Louisiana high school has sought to punish student-athletes who don’t stand, and CBS news reported that school and college athletes who have knelt during the national anthem have suffered verbal abuse and even lynching threats for exercising their First Amendment rights.
Ironically, these extreme reactions validate the students’ protests, since in American culture kneeling itself is a widely accepted gesture of sorrow, respect and faith. And by extension, it seems fitting to regard kneeling as an appropriate expression of nonviolent public protest to show sorrow for victims of injustice and for the divisions among our country’s citizens, as well as respect for the First Amendment, which is the absolute bedrock of our democracy.
So I’ve decided that if I see others take the knee at a public event, I will join them – both to show my own sorrow, and to honor freedom of expression itself - because any right that we’re afraid to exercise is a right in mortal danger.
What a curious twist that kneeling now actually means standing up – taking action to protect our precious right to free expression.
