It’s Memorial Day. A day for Americans to sit around eating BBQ, waving American flags, and taking the day off. Historically, it’s about making peace with your enemies. Memorial Day started in the South, in the wake of the Civil War, as a way for the losing side to reach out to the winning side and acknowledge all the fallen dead.
In modern days, we tend to treat Memorial Day as a remembrance of the sacrifices made by our own military, in foreign wars, in order to protect our freedoms, particularly those spelled out in the Constitution.
One of our most cherished freedoms is that of speech. As American citizens, we are allowed to express our opinions without government intrusion.
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The NFL recently added a new rule: Teams whose players kneel during the National Anthem will be fined. This appears to contradict earlier agreements between teams and players.
The NFL is a private employer. I’ll leave it to the player union lawyers to determine if any agreements have been broken. As private employers, the NFL and its teams have wide latitude in curtailing the speech of its employees, particularly when they’re at work.
However, if the defense of this policy is that players who kneel during the National Anthem are disrespecting the sacrifices of our military in defending our freedoms, the policy is completely and utterly wrong.
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In 1935, while the Nazis were gaining power in Europe, two Jehovah’s Witnesses children were expelled from school for refusing to salute the flag during the Pledge of Allegiance. The case, Minersville v Gobitis, reached the Supreme Court, which ruled in 1940 that students could not be excused from displays of national pride on religious grounds alone.
However, three years later, the Supreme Court revisited the argument from a different perspective: While the First Amendment’s free exercise of religion clause did not apply, the First’s free speech clause did. In the famous Barnette case, the Court effectively ruled that failure to speak was itself an act of speech. That is, the act of sitting, kneeling, or otherwise refusing to stand and salute the flag during a national display represented protected political speech. No agent of the government, including public school teachers, could infringe upon that speech.
In the majority opinion, Justice Robert H. Jackson famously wrote, “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.”
This was shortly after we entered World War II. We did not enter the war because of it, but every soldier who fought for American freedom during D-Day was fighting for a country where the government could not compel any display of national pride from any citizen.
In the opinion of the 1943 Supreme Court, freedom of speech wasn’t merely important. More specifically, the right not to have government coercion to nationalist displays was the single most important right of citizens. It was the one fixed star in our constitutional constellation.
Given the historical milieu, it would be easy to conclude that Nazi salutes and visions of the Hitler Youth were on the minds of the Justices, as well they should have been. Nazi Germany forces people to stand and salute Der Führer. Not here, not in the United States.
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Meanwhile, in 2018, the NFL is creating policies that are being praised and encouraged by the President of the United States. Policies that would be unconstitutional for the President to create for public schools and other government agencies. Policies that we abhorred in 1943 because they looked far too much like what was happening in Nazi Germany.
This should be give pause to every citizen.
The Americans who died in the last years of World War II died to protect a nation in which children could refuse to say the Pledge of Allegiance or sing the National Anthem if they so chose. In which it was up to the private citizen to decide what was a fitting display of proper respect for the country, if indeed they wanted to respect the nation at all.
For Colin Kaepernick, the NFL player whose kneeling set off this cultural firestorm, kneeling was his way of showing respect for the flag while declaring his concern for the direction of the country. It’s not about the flag, it’s about the honest dialogue about race and oppression that too many people in power continue to refuse to have.
And it’s not because NFL players think they themselves are being mistreated: It’s because everyday people, black folks getting shot down and beaten daily, who are being held back even now, half a century after the Civil Rights Acts of the 1960s, a century and a half after the legal emancipation of the slaves, don’t have the platform that NFL players do.
The self-appointed nationalists have it backwards: This country is about listening when people kneel, not about telling them to stand up.
Originally published on The Good Men Project.