NFL Players Kneel for the Anthem – TV Audiences Turn Off the NFL – Free Speech Goes Both Ways

To be sure the U.S. Constitution’s guarantee of free speech in its First Amendment allows anyone to criticize the government, but exercising free speech does not mean you are free from that speech having consequences. Of course, the government cannot take action against the speaker or the speech, but some free speech is intended to provoke, and the speaker is not insulated from the lawful reaction to the speech of private citizens and businesses.

In the U.S. right now, it has become popular for some NFL football players to kneel during the National Anthem supposedly to protest police brutality against black communities. It was started by football quarterback Colin Kaepernick. He said “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color”. His very direct purpose was to “disrespect” the country and its flag and anthem because of what he perceived as “injustice”. Others trying to avoid being seen as disrespecting the country, flag, anthem and military servicepeople since his words have tried to spin the protest as not involving disrespect for the country or the flag, but most people are not having that prevarication.

Kaepernick is absolutely entitled to protest. Especially as a spectator. But as a player, as an employee of an NFL football team, there is less flexibility in his choice of when and where to exercise his free speech. Since his protest, and since he decided to leave his team, he has not been rehired. Some say he is not a good enough quarterback to get hired, some say it is in retaliation for his controversial protest. But there were consequences for his exercising his extremely unpopular free speech. Employees represent the companies they work for, even if they earn tens of millions of dollars.

His protest has been taken up by other players. And a huge number of spectators of the NFL have consequently decided to turn off their TVs and not watch football if the players are going to kneel during the National Anthem. Under the Constitution, the players can exercise their free speech in the absence of a direction from their employer, but the spectators also have the right to decide not to watch. The NFL is losing its share of Sunday’s TV audience because so many people are not watching the games anymore. The teams are trying to get the players to protest outside of their games, so as not to project a stand on Kaepernick’s complaint. The teams of course just want to play football (and so do many other players), and virtually all of the audience just want to watch the games without the politics.

On Sunday the Vice-President of the U.S. attended a game, and several players from one team kneeled and others wore shirts that protested. The VP left the game in a protest of his own, saying he would not attend a game where the players disrespected the country, the flag, the anthem and the men and women who fought for freedom, the soldiers and others.

Many have said the players who kneel should be fired. This is a First Amendment legal issue. Companies presumably have power to determine whether their employees can engage in political speech while on duty (for obvious reasons) and even to discipline them if they do something against the team’s policies (a famous baseball player was fired for political speech aligned with President Trump). Now it is becoming a struggle for vast sums of money affecting the teams. A team which pays a player more than $10 million to play football, does not want that player doing anything that takes away hundreds of millions of dollars in revenue. Players who wish to protest can do so on their own time, the argument goes.

I don’t agree with Kaepernick’s complaint. A man who earned tens of millions of dollars playing American football complaining about a country where he could live such a wonderful like makes it seem he is ungrateful for the opportunities provided. Also, 70% of the football players are people of color, a huge disparity in demographics. I also don’t agree with his assessment of “injustice”. The U.S. is a country of laws, enforced by police in general. While there have been cases of people of color killed by police in the line of duty, there have been lots of cases of white people also killed in the line of duty. It is very hard to convict police officers of murder because most people respect the split second decisions officers must make when faced with aggression, possible weapons and situations requiring orders to perpetrators who may or may not follow the directions of the officer. In almost every case questioned by Kaepernick. the perpetrator refused to follow the officer’s directions, which usually are “Stop. Police. Raise your hands.” In almost every case of protest, a jury has found the police officer innocent, or the Grand Jury has voted not to indict the officers. Due process of law applies in both directions as well, for the individual, and for the officers, who are also entitled to it.

In any event, there are two sides to free speech. The speech, and the consequences. Both are likely within the First Amendment’s parameters. Many Americans just want to watch football, not protests. And the more protests there are, the more people there will be watching baseball or soccer or golf or the news or movies instead. The owner of one team has said that his players will not kneel during games to disrespect the flag or the country. Perhaps there will be some case about this. One ESPN commentator vociferously argued that the NFL audience should turn off the game to protest this team — I think she completely underestimated the sentiments of the people watching football. Those in favor of the protests form a tiny tiny fraction of NFL enthusiasts. She was suspended by ESPN for suggesting the boycott, ironically a violation of ESPN rules. Free speech does have its limitations for employees.

The protests have basically backfired. I don’t believe in this protest against the country or the flag. The complaints by Koepernick have nothing to do with the country or its flag or its national anthem.  If Mr. Koepernick detests the country so much, he is welcome to find another place in the universe where he could earn millions of dollars a year for throwing pigskin around or for which fame anyone would listen to him.

The discussion about the police and alleged brutality has been aired and has been subjected to legal action. During the Obama administration, the government almost always took the side of the individual against law enforcement (and always on the wrong legal side, eventually), creating a huge divisive undercurrent against police. The result of this has been an enormous spike in violent crime, especially in the former President’s own backyard in Chicago, where the crime rate is through the roof, probably because the police modified their procedures to avoid getting caught in the kind of situations with minorities that created the failure to obey and resulted in shootings. The minority neighborhoods have run amok, and gun killings are out of control. It is ironic.

Those protesting have to understand it goes both ways. Free speech is a tough lesson in democracy. While they may have permission from their teams to protest and say the things they believe in, the audience has the right to reject their speech and turn them off. And if the teams suffer financially, they may insist their players follow the rules. If the players do not follow the rules, they can be disciplined by the team and told to stand during the National Anthem or be benched. Free speech can have consequences. Nothing stops those same players from kneeling at every playing of the National Anthem on their own time.

It is time that people who protest on the left take off blinders and begin watching and listening to the other side of things. All I hear from their point of view is that it is the only point of view that is valid. Thinking like that leads nowhere pretty quickly, and is anathema to the Constitution’s notions of free speech. How ironic, and hypocritical.

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