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Football and the First Amendment — Who Do We Root For?

September 13, 2016
On the Law

This column was originally published in the Grand Rapids Business Journal on September 9, 2016 and is republished with permission.

There is no denying the power of athletes to affect, inspire, and even anger us. 

It's not just their actions, such as fumbling a punt snap on the last play of a big college game. They also affect us with words or gestures or expressions. They do it when they stand. And they do it when they kneel. 

Take Colin Kaepernick. He is the San Francisco 49ers' quarterback, believed a couple years ago to be one of the best in the game, but now fighting for a job in the NFL. He recently refused to stand for the national anthem prior to a preseason game. 

Kaepernick said that he remained seated to show his concern over justice in America. Questioned -- after outrage over his actions -- Kaepernick offered numerous quotes, including statements to the effect that, "We have a lot of people that are not being treated equally. . . ." He also said that Americans need to do something about "police brutality." 

Kaepernick said he was concerned over what he saw as unfair treatment of citizens, often African Americans, by police officers, such that he could not stand for the anthem of a nation where actions that offended him were occurring. 

As controversy over Kaepernick's stance accelerated, his activities grew. For one example, Kaepernick was photographed wearing athletic socks adorned with drawings of pigs wearing police hats.

In the face of criticism from some and support from others, Kaepernick -- on the Thursday before Labor Day -- decided that, instead of sitting during the national anthem, he would "take a knee. In other words, just as another quarterback named Tim Tebow once decided to kneel at a football game to express religious views, Kaepernick chose to kneel on one knee as an expression of his viewpoint.

Sometimes it's hard to hear the words that others say. It's not that we fear words themselves. I have a dictionary full of them in my office. Not a single one scares me. But combinations of words, and ideas that they express, often provoke anger. Simple gestures can also provoke. 

I remember first grade at Meadowlawn Elementary School in Kentwood. We were getting ready for Christmas, and Christmas gifts, when a girl named Christine said there would be no Christmas tree, and no Christmas, at her home. 

Christine and her mom and dad were Jewish. They did not worship as my family worshipped at St. Mary Magdalen, only four blocks away from our class room. 

Christine's words might have offended me, but first graders don't use words like "offended." I do know that some of us were angry at the thought that -- if Christine's idea caught on -- Christmas might be cancelled. We clumsily discussed sneaking a Christmas tree into her family room.

The unfulfilled plans of six year olds aside, it's clear that things that first graders and first string quarterbacks say and do can offend others.

A related question is whether the expression of even unwelcomed ideas can be a good thing.

The First Amendment to the United States Constitution states that "Congress shall make no law . . . abridging the freedom of speech,. . ." yet it protects more than just speech. The Supreme Court has "long recognized that its protection does not end at the spoken or written word." In fact, the prior quote comes from a case in which the Court struck down a statute prohibiting flag burning, because the statute was designed to protect "a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals" – a protection that was contrary to the freedom afforded by the First Amendment. 

To be sure, the First Amendment is not without limitation. But the type of "speech" engaged in by Colin Kaepernick is exactly the type of free expression that the First Amendment was designed to protect.

Sound familiar? That principle explains why Colin Kaepernick has not been charged with a crime for his protest of the national anthem. 

On the weekend after Colin Kaepernick sat through a national anthem, one of my partners took to social media to express his disappointment. In doing so, he expressed his right to free speech and expression. My partner's Facebook friends joined in and, in doing so, they also expressed their views. It's something that we're all allowed to do.

With the First Amendment in mind, I've been scanning postings from the "Twittersphere" about Kaepernick's actions. For starters, a man named Bradon wrote, "There are more ways to address a problem than being disrespectful to your country. I have no respect for Colin Kaepernick."

Perhaps in response, a man named Julius wrote, "C'mon, Kaepernick not standing for the anthem doesn’t mean he doesn't love America. It means he loves his country enough to say that something is wrong."

I have mixed feelings here. Very mixed feelings. Part of what bothers me about the Kaepernick affair are reflections on the thoughts of those who believe that Kaepernick's actions and statements were disrespectful to soldiers who have died in service to our country. The deceased include my wife's brother Bob. "Bobby" Hill, which is what his mother called him, would be 70 years old this fall had his helicopter not been shot down while he served in Vietnam in June of 1970. 

Today, 46 years after Bob's funeral, I am also struck by a posting from an armed forces veteran named Mike who considered Colin Kaepernick's conduct and then wrote, "After a lot of thought about this I realize that this is the exact thing that I swore to defend. Freedom." Mike wrote under the hashtag "#VeteransForKaepernick."

So it's not just athletes. Rather, there is a power in each of us and in all of us to affect, inspire, and challenge each other.

The Thursday-before-Labor-Day exhibition game at which Kaepernick decided to kneel was played on Military Appreciation Night in San Diego and, for reasons that are unclear to me, Kaepernick did decide to stand for the playing of "America the Beautiful," before the start of the fourth quarter.

At some point during the game, in response to Kaepernick's prior actions, one fan held up a large banner. It read: "YOU'RE AN AMERICAN. ACT LIKE ONE." 

The sign reflected one American's thoughts and one American's view. 

I don't know if Colin Kaepernick saw the sign. If he did, he might have thought, "Well, I’m sorry." Or maybe he'd have thought, "Well, I am an American. And I hope that I am acting like one."

The NFL's regular season is now underway. And a new group of first graders has begun class at Meadowlawn Elementary. They'll learn reading, writing, and arithmetic. Someday, teachers will tell them that our laws protect us all.

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