I have friends on both sides of the debate about NFL players kneeling during the anthem so I am sure this post will anger someone. But it won't be the first time nor will it likely be the last time. I do not consider myself to be particularly political. I identify neither with Democrats nor Republicans as political parties. I fall rather in the middle in the liberal vs. conservative debate (some issues I lean more to the liberal side of things while others I am more likely to side with conservatives). I do think the government is too much into the private lives of the citizens. I do not think they should tell us how (or even whether) to worship. I do not think the government needs involved in the love lives of its citizens. I prefer my health care to decisions to be between doctors and patients, not doctors, patients and the government (even when they're the insurer as they are for me). I'm torn on other issues because they are something good for the citizens but horrible in that they will bring the government even more into our private lives. I do not like strangers telling me what is right for me. So why do I think I should decide what is right for others? I don't. I am patriotic. Even I tend to stand during the anthem in spite of the pain and other problems it causes. I highly respect the members of our military and the risks they take for the citizens of the US and protecting our freedoms. While I may have never served (I couldn't have even if I wanted to due to all of my health issues), there is a long history of service members on both sides of my family dating back to the Revolutionary War. I've largely avoided all of the debate over this who kneeling during the anthem issue. But a Twitter post from a third generation veteran got me to thinking yesterday and this is the result. I decided to sleep on it before posting it to see if I still felt strongly about it. And in spite of the people I may anger, I'm posting it.
In all of the debate over NFL players, I thought about how I felt personally about the issue as well as about the other sides to it. You'll notice I don't call them "NFL heroes". I don't consider them (or any other teams of sports or stars for that matter) to be particularly heroic as a whole. Heroism is NOT getting paid millions to entertain or chasing a ball on a field while running from other players. Heroism is: 1. Heroic conduct or behavior. 2. Heroic characteristics or qualities; courage. A hero is: 1. A person noted for feats of courage or nobility of purpose, especially one who has risked or sacrificed his or her life. The etymology of the word "hero" ultimately comes from Greek. "Early Modern English heroe, back-formation from heroes, heroes, from Latin hērōēs, pl. of hērōs, demigod, heroic man, from Greek; see ser- in Indo-European roots." And going back to ser- in Indo-Eurpoean roots leads to: "ser-1 To protect. 1. Extended form *serw-. conserve, observe, preserve, reserve, reservoir from Latin servāre, to keep, preserve.2. Perhaps suffixed lengthened-grade form *sēr-ōs-. hero from Greek hērōs, "protector" hero.[Pokorny 2. ser- 910.]" And that does not necessarily apply to athletes and other "stars" just for doing their job. How is running down a field, chasing others while trying to get a ball in an end-zone a "feat of nobility and courage"? No, it's more talent and practice rather than heroism. But considering them heroes or not aside, this whole debate has gotten me thinking.
Now, I am usually able to separate my personal feelings about a lot of subjects from my feelings on the rights of others to express their opinions on those subjects, even differing ones. I fully think that the fabric of our nation is built on the right of all citizens to certain freedoms, one of them being freedom of speech. Evelyn Beatrice Hall (writing as S.G. Tallentyre) probably said it best (in a quote usually misattributed to Voltaire) in her work, The Life of Voltaire (p. 199): "I disapprove of what you say, but I will defend to the death your right to say it." I do not have to agree with someone to defend their right to express their opinion on an issue. And while I might not find kneeling during the anthem tasteful or something I would do, I recognize that others disagree. I see whether someone salutes the flag or not as an expression of freedom of speech (more on that below). To me on a personal, it's disrespectful to those who fought to protect that flag not to show respect for the flag, but that is my personal opinion. I also see the other side. I understand that others do not feel the same and see it as a form of nonviolent protest and/or freedom of speech. As freedom of speech, whether I find it right or not, I will defend their right to engage in that freedom. Those who fought to protect the flag, did so for what it symbolizes, which is not just our country but the principles it was founded upon and the freedoms we have. Freedoms we have because of the sacrifices of many who stood and fought for that flag. Those who fought, did so to protect our rights to the freedoms we have in this country as symbolized by the flag. So being hateful to people who are expressing those freedoms is also disrespectful to those who fought to give us those freedoms. In a way it is saying, "Yes many have fought for the freedoms we have but your way of expressing that freedom is different than mine and therefore your way is wrong." I saw at least one post by a Vietnam vet who said he spent years in the military to protect the rights of others, even those who want to kneel during the anthem.
I wanted to know what US law says about the anthem, the flag, and how freedom of speech fits into those laws. So I consulted the US Code of Laws (published by the US House of Representatives on the Office of Law Revision Counsel site on the United States Code). It is a handy searchable list of all kinds of laws with updates etc. Title 36, § 3-301 pertains to the national anthem, while Title 4, §§ 1-1-10 pertain to the flag (with sec. 8 titled "Respect for the Flag").
The law about the anthem is fairly clear. In section 3-301, the first part is about when the anthem is played when the flag is displayed. That part states (subsections A & B pertain to individuals in the military and veterans) in subsect. C: "all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart". The second part is about the anthem without the flag being displayed and it states: "when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed." So quite technically, yes, standing during the anthem is required by law. That is pretty clear wording. But, we also have to take into account freedom of speech and later rulings by the Supreme Court. Standing during the anthem is a form of salute (to the flag if displayed) and as if to the flag if it is not displayed but that wording is limited to during the anthem being played.
Our Founding Fathers protected the rights of the citizens of the United States to have freedom of speech in the First Amendment of the constitution, which states in part, “Congress shall make no law...abridging freedom of speech.” Now many will argue that the act of kneeling during the anthem isn't speech. But US courts have long debated what constitutes freedom of speech. Here are some things the US courts consider freedom of speech covered by the First Amendment (along with the cases that led to the decision): Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines, 393 U.S. 503 (1969).
- To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U.S. 15 (1971).
- To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo, 424 U.S. 1 (1976).
- To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Hmmm. So "the right not to salute the flag" while technically illegal during the playing of the national anthem is covered as freedom of speech by the Federal Judiciary. Gasp. Even burning the flag (which quite honestly I find even more distasteful than kneeling during the anthem as a form protest) is covered under freedom of speech as "symbolic speech" by the Federal Judiciary.
But for all of those outraged by the NFL players kneeling during the anthem, have you considered how many other infractions about the flag occur? As a Twitter post by HennyWise shows, there are numerous examples of using the flag in a way that goes against US Code of Law. But do most of you complain about those infractions? Somehow I doubt it. I certainly haven't seen a flurry of outraged posts about the flag being carried flat, used as apparel, used for advertising, or on athletic uniforms. How many of you complaining about the NFL players who are kneeling during the anthem break those same portions of code, whether inadvertently or intentionally? So why complain when others do it in a different manner? Is that not a double standard? While the Twitter post uses US Flag Code, the same items are in the US Law Code in Title 4, ch. 1, § 8 which says:
No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.
(a) The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.
(b) The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.
(c) The flag should never be carried flat or horizontally, but always aloft and free.
(d) The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker's desk, draping the front of the platform, and for decoration in general.
(e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.
(f) The flag should never be used as a covering for a ceiling.
(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.
(h) The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.
(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.
(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.
(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
By my count, there are a number of these the NFL routinely breaks not to mention the ones other companies (advertisers, clothing companies, etc) violate as the post by HennyWise shows rather clearly (in one comment following the images he uses as examples, he does say "Nothing in the Flag Code explicit states you have to stand, just that you “should.” All the things I listed were outlined as disrespectful." which is erroneous when combined with the anthem being played). But hey, who cares if those groups/companies do it (and profit from it) but it makes perfect sense to vilify the players who kneel, right?
While I make no claim to fully understand the legal wording etc of the court decisions about freedom of speech, I did want to include the links to the full text of those decisions for anyone interested. And I skimmed through them. A few things stood out to me.
"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity."
"As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. [emphasis added] Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.... Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."
"It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."
"The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. 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."
"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. [emphasis added] If there are any circumstances which permit an exception, they do not now occur to us. "
(from West Virginia State Bd. of Educ. v. Barnette)
So way back in 1943 (during a time of rather high patriotic fervor since we were in the middle of WWII) the Supreme Court recognized that forcing unity on citizens would lead to more strife. Sounds a lot like what is happening right now. Strife over the flag, over statues, over the racial divide where our president condemns football players for non-violent (albeit disrespectful to many) protests but seems to have less of a problem with Neo-Nazi hate speech? A non-violent protest is somehow more deserving of harsh criticism than hate speech that prompted violence?
While flag burning is a good bit different than kneeling during the anthem, one thing struck me in the Texas v. Johnson case. "No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning." To justify the conviction, the state of Texas "asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace." How did the court react? "The Court of Criminal Appeals held that neither interest supported his conviction." The next part gets even more interesting.
"Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag's symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. 'Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,' the court explained, 'a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent."
"As to the State's goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. "Serious offense' occurred," the court admitted, "but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate 'serious offense' with incitement to breach the peace."
The case goes on to discuss "freedom of speech" and what is covered. I think it is interesting that it specifically calls the salute of the flag a "form of utterance". As well as listing earlier cases that discuss the salute, wearing the flag on clothing etc.
"[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design."
At one point, the case notes: "Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." Sounds an awful lot like people criticizing the NFL players for kneeling huh? They may not be facing prosecution by law but they have been tried and condemned in the court of public opinion for their expression. But "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. [emphasis added]” In 1969, the court ruled "a State may not criminally punish a person for uttering words critical of the flag." and concluded that "the constitutionally guaranteed 'freedom to be intellectually . . . diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous." (see link to Street vs. New York below).
In United States vs. Eichman, the court states, "The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself." If destroying or disfiguring the flag does not "affect the symbol" of the flag, how does kneeling rather than saluting it "affect the symbol" of the flag? Another point it raises is, "While flag desecration -- like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures -- is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable [emphasis added]." Hmm. So the Supreme Court ruled that just because members of society find something offensive, it does not mean the government can prohibit it. So why are we arguing about this still?
Ultimately, the court said, "The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here." So if burning the flag is covered as nonverbal conduct covered by the First Amendment, how is kneeling different? It's not desecration of the flag. Not destroying the flag. The act of kneeling itself is non-violent. It is disagreeable to many but even the Supreme Court acknowledges that the government cannot prohibit expression simply due to the distaste of society. These issues have already been fought over in the Supreme Court more than 20 ago years and decided. So why are people judging those players for their freedom of speech? Oh I forgot.
We're largely a nation that claims to be Christian but yet we are so very judgmental of those who do not believe exactly as we do. even among various sects of "Christianity" there is quite a lot of disagreement about beliefs. Everyone is SO sure their form of Christianity is right. That might explain the tendency to judge everyone else by our own personal moral standards and interpretations of law and scripture. Hmmm. For the Christians who are judging the NFL players, I have some comments. "Judge not, that you be not judged....First remove the plank from your own eye, and then you will see clearly to remove the speck from your brother’s eye." (Matthew 7:1-5 NKJV). In this portion, Jesus was discussing the judgment and reproof the scribes and Pharisees engaged in. Those same scribes and Pharisees "who were very rigid and severe, very magisterial and supercilious, in condemning all about them, as those commonly are, that are proud and conceited in justifying themselves." (Matthew Henry). Jesus teaches against that very behavior as well as the hypocrisy of pointing out the sins of others while ignoring our own. Hmmm. rigid and severe can definitely describe much of the outlash against the NFL players! And later, in John (vv. 1-9), when a group of men brought a woman to Jesus saying she had been caught in adultery (I always wondered where the other party she was caught in adultery with was and why they weren't facing being stoned too) and should be stoned because the "law commanded it", Jesus stoops down and begins to write something. As they continue to question Him, He says, "He who is without sin among you, let him throw a stone at her first.” and again writes something on the ground. The accusers were "convicted by their conscience" and all left.
So in light of letting "he who is without sin" throw the first stone, I have some questions for all of those who are judging and criticizing the NFL players. How many of you see no issue with the flag being displayed flat as shown in the stadium pictures? Who among the complainers have articles of clothing with flags on them and feel those are perfectly fine expressions of patriotism? Are all of you complaining about how disrespectful it is to kneel during the anthem going to stop supporting or buying anything from anyone who uses it for advertising as a matter of principle? Are you willing to stop buying flag themed home goods and party decorations? Or no longer support athletic teams who put it on their uniforms (hmmm wonder if there are high schools who display the flag on their uniforms but it's ok for them right?) How many of you that are critical of the players stand when you hear the national anthem as you're watching the start of the game on TV? Or are you too busy chatting with your friends and stuffing your face? Are we going to stop attacking each other and fighting over what amounts to freedom of speech and start worrying about real problems? I also wonder when some issue of moral outrage pops up to divide the nation and draws the focus of the citizens, what else is going on that the citizens are not paying attention to because they are focused on something that quite honestly has been debated and ruled on by the courts decades ago? While I personally find not standing during the anthem distasteful, I will defend the right of others to non-violently protest and kneel as their right of freedom of speech.
Twitter post of HennyWise https://twitter.com/koopa_kinte/status/911715150507454464
US Code of Laws http://uscode.house.gov/browse.xhtml
Title 36 — PATRIOTIC AND NATIONAL OBSERVANCES, CEREMONIES, AND ORGANIZATIONS http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title36-section301&num=0&edition=prelim
Title 4 — FLAG AND SEAL, SEAT OF GOVERNMENT, AND THE STATES http://uscode.house.gov/browse/prelim@title4&edition=prelim
US Constitution Bill of Rights Transcript https://www.archives.gov/founding-docs/bill-of-rights-transcript
"The Friends of Voltaire" https://babel.hathitrust.org/cgi/pt?id=yale.39002052244150;view=1up;seq=235
United States Courts "What Does Free Speech Mean?" http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does
West Virginia State Bd. of Educ. v. Barnette 319 U.S. 624 (1943) https://supreme.justia.com/cases/federal/us/319/624/case.html
Texas v. Johnson, 491 U.S. 397 (1989)
United States v. Eichman, 496 U.S. 310 (1990)
Street vs. New York, 394 U. S. 576 (1969)
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