Taking a Knee, Free Speech, and President Trump

Over the weekend much of the Twittersphere, at least the corners I inhabit, have been full of comments about NFL players ‘taking a knee’ during the National Anthem. There has been even more comment about President Trump’s criticisms of the players, both by those who agree with him and by those who don’t.

What was often missed in the Twitterstorm is that, Constitutionally speaking, taking a knee during the Nation Anthem is a legitimate form of protest. It is Constitutionally protected under the First Amendment as ‘expressive speech’. In fact, in United States v. Eichman, 496 U.S. 310 (1990), the US Supreme Court ruled that even such potentially offensive expressive speech as burning the American flag is  protected.

While taking a knee may be legal, however, that doesn’t mean it’s not offensive to a great many Americans. Football in the United States is about much more than just the game. It is an American subculture in itself, one that includes all sorts of other things such as, for many Americans, patriotism. As they see it, for NFL players to disrespect such an important aspect of patriotism as the National Anthem is grossly unacceptable. It’s no wonder so many ‘normals’, to borrow Kurt Schlichter’s phrase, are angry with the players and lost no time in taking to Twitter to say so.

They were not alone. President Trump also let his opinions be known. If Don Surber is correct, it was a good strategic move. It successfully shifted the media’s attention away from Congress’s failure to repeal and replace Obamacare, a key plank in President Trump’s campaign platform. Da Tech Guy also thinks it was a sound tactical ploy, though for different reasons.

President Trump’s tweets and comments fell into three general categories:

1. Calls for players who take a knee to be fired;

2. Calls for NFL commissioners to order players to stand;

3. Calls for fans to boycott games until franchise owners tell players to stand and/or players stop taking a knee.

For what it’s worth, I believe players should stand for the National Anthem. For many Americans, not to do so is nothing less than unpatriotic. As philosophers since at least Plato have explained, patriotism is a civic virtue in a citizenry.

That said, I’m afraid President Trump is only partly right in his comments. What he got wrong was saying that players should not be allowed to disrespect the National Anthem and calling for players who do so to be sacked. There is a basic, inviolable principle in liberal democracies: a man shouldn’t face the breadline simply because of his political views.

I am an absolutist when it comes to both free speech and the sanctity of property rights and contracts. NFL franchises are all privately owned businesses (‘privately’ here in the correct sense of not being owned by the government). Whether a business chooses to begin disciplinary procedures against employees who bring their employer into disrepute is up the business owners alone. It is not for government officials, not even the President, to override that.

As for President Trump’s statement that the NFL commissioners should make players stand, well, that too is not acceptable for the same reason.

What the President got quite right, however, was his calling on the fans to boycott the League. Whilst the players have every right to protest whatever issue they wish and their employers allow, the fans also have an absolute right to counter-protest against the players. They are entirely allowed to call the players ‘sons of bitches’ and any other name they can come up with. More importantly though, they also have another form of protest at their disposal, one far more powerful than mere words: the power of the boycott. If fans refuse to attend games or watch them on TV then two things will happen. Obviously, gate receipts and advertising revenue will fall. That will hit the franchise’s bottom line and hit it hard. But even worse, fans who watch the game on TV will see largely empty stadiums. That makes a terrible impression that can only damage the franchise’s image further, leading other fans to reconsider their willingness to associate themselves with the franchise. Those are two things that tend to concentrate business owners minds wonderfully. If fans act together the franchise owners will soon enough be willing to tell their players what NASCAR owner Richard Petty told his drivers: taking a knee will ‘[g]et you a ride on a Greyhound bus when the national anthem is over’.