“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.” — Colin Kaepernick, August 2016
I am, once again, going to wade into this controversy with my own semi-humble opinion. It is a topic I have dealt with at least once or twice before, but people are losing their grip on reality here and it has set my radar to ticking.
To start, there is not a single word in the U.S. Constitution about kneeling during the playing of the national anthem. The national anthem wasn’t even thought of in 1787 when the Constitution was signed and ratified. The lyrics to the song were written by Francis Scott Key in 1814, but the song was only adopted as the national anthem in March 1931. Additionally, there is no federal or state law making it a requirement to stand when the song is sung or played.
Last October, former judge and then-senatorial candidate from Alabama, Roy Moore claimed …
“It’s against the law, you know that? It was a act of Congress that every man stand and put their hand over their heart. That’s the law.”
Judge Moore lied. There is no such law. Congress indeed passed a law dealing with decorum during the national anthem. But the etiquette is merely a suggestion, not a legal obligation. It is a song, folks … only a song. Hardly worth people threatening other people’s livelihoods over.
There is a legal precedent that protects people’s rights in such cases. In 1943, the Supreme Court ruled in West Virginia vs. Barnette that the First Amendment protects people from being forced to participate in patriotic ceremonies that offend their conscience or beliefs. And more recently, in the 1989 case of Texas vs. Johnson, the court protected the the right to burn the American flag as a form of symbolic speech. Just as the national anthem is but a song, the flag is but a piece of cloth. People matter more!
Catherine Ross, a law professor at George Washington University who specializes in First Amendment law, said “If the Constitution protects the right to burn the flag and the right not to participate in the pledge as aspects of free speech, it must also protect the right to kneel respectfully during the national anthem or the pledge of allegiance.” I strongly suspect that is how the courts would rule.
Colin Kaepernick used to play for the San Francisco 49ers. From what I understand, he was one of the league’s best quarterbacks. As such, he has a voice, a presence, a public persona and in August 2016, he used his voice to call attention to the atrocities being committed against African-Americans in this nation by police. After a spate of police killing unarmed black men, it was time for somebody to take a stand … or, in this case, a knee, for Mr. Kaepernick took a knee when the national anthem was played. And, based on the uproar, you might have thought he murdered a room full of babies.
Kaepernick began receiving death threats, one NFL official referred to him as a ‘traitor’, and worst of all, he was black-balled from the NFL and no team would sign him in 2017. He lost his livelihood for a peaceful protest against proven injustices by law enforcement in this country.
Pause here for just a moment, if you will. After the rally by white supremacists and neo-Nazis in Charlottesville, Virginia, in August 2017, Donald Trump claimed that among those hate groups there were some “fine people”. Lives were lost that day, murder was committed, and the most abominable form of hatred was on display by those “fine people”. And yet, a man engages in a peaceful protest that hurts no one, simply goes down on one knee to remind people that this country is losing its values, and here’s what Donald Trump had to say about him …
“I think it’s personally not a good thing, I think it’s a terrible thing. And, you know, maybe he should find a country that works better for him. Let him try, it won’t happen.” – 30 August 2016
And more recently …
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’” – 23 September 2017
“You have to stand proudly for national anthem, or shouldn’t be playing, you shouldn’t be there. Maybe you shouldn’t be in the country. You have to stand proudly for the national anthem. And the NFL owners did the right thing.” – 24 May 2018
Why did the president of the country feel a need to involve himself to start with, and why the Sam Heck is he still, two years later, injecting his hateful and uneducated opinion? This, folks, is the piece of work we have sitting in the highest seat of government in this country. But back to Mr. Kaepernick …
In May of this year, the NFL, presumably under pressure from Donald Trump, approved a policy that forbids players from kneeling during the playing of the anthem. As a compromise, they may stay in the locker room, but if they are on the field, they must stand. The decision was made without input from or negotiation with the players union, which is a flagrant violation of the employer’s duty to bargain in good faith. It might behoove them to remember that it is the players, not the team owners nor NFL officials, who make the money that supports the NFL and the teams.
What I find equally, if not more disappointing is that the majority of people in this country do not support players’ right to protest peacefully by kneeling during the anthem. 43% of voters believe kneeling during the national anthem is an appropriate way to protest racial inequality, while the majority, 54%, say it is not appropriate. The other 3% were asleep. Predictably, though sadly, the results fell along political and racial lines. We are no better than we were 200 years ago, my friends.
Meanwhile … Colin Kaepernick, who has been out of work since March 2017, was made privy to leaked audiotapes of an NFL meeting held in October where, in response to players questioning whether Kaepernick had, in fact, been blackballed, the team owners expressed their fears about further aggravating Trump. Patriots owner Robert Kraft—a supporter of Trump—worried that “the problem we have is, we have a president who will use that as fodder to do his mission that I don’t feel is in the best interests of America.”
Colin Kaepernick filed a collusion grievance against the NFL, asserting that the league conspired to deprive him of his right to sign with any team. The burden of proof is on Kaepernick, and collusion is not easy to prove. The NFL had high hopes that Kaepernick would not be able to convince arbitrator (and University of Pennsylvania law professor) Stephen Burbank that there is sufficient evidence of collusion. However, last week those hopes were dashed when Burbank, who was appointed by the league and the NFL Players Association, said lawyers for Kaepernick had unearthed enough information in the past year for the case to proceed to a full hearing. It is a preliminary step, but an important one.
For the record, this writer fully supports Colin Kaepernick and any other players who have the courage to stand by their convictions, who are not afraid of the bullies in government, the NFL and society. The flag and the anthem ought to stand for something, but more and more these days, they stand for hypocrisy rather than values.