Professional sports and freedom of speech

2016-torch-week-1-kaepernick
by Andrew Tyrrell, Managing Editor

The year is 1984. Dallas, Texas is home to the Republican National Convention, where President Reagan is about to be nominated by the Republican Party for his second term in the Oval Office. Outside of City Hall, a group of people have gathered to protest President Reagan. Among them is Gregory Lee Johnson. As part of his protest, Mr. Johnson soaked the American flag in kerosene, and set it ablaze.

Initially arrested and sentenced to one year in prison and hit with a $2000 fine for violating the Texas anti-flag desecration law, the United States Supreme Court found, in 1989 when Johnson’s conviction was challenged, that flag burning is protected by the First Amendment’s guarantee of freedom of speech.

In the 5-4 majority opinion, Justice William Brennan reasoned that the Texas law, which aimed to preserve the symbolism and importance of the American flag, was irrelevant. The fact that someone would burn the flag in an act of protest showed nothing more than the enduring power of that very flag and what it represents.

Justice Brennan also said, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” That quote is very important, and I urge that you hold it in mind as you read.

At the 1968 Olympic Games in Mexico City, American track athletes Tommie Smith and John Carlos donned black gloves, bowed their heads, and held their fists high, the Black Power salute, during the National Anthem to protest the treatment of African Americans in the United States. That photo is one of the most iconic ever taken.

In 1972, Jackie Robinson, the first African American to play in the MLB, and one of the greatest baseball players of all time, wrote in his autobiography “…as I write this twenty years later, I cannot stand and sing the anthem. I cannot salute the flag; I know that I am a black man in a white world. In 1972, in 1947, at my birth in 1919, I know that I never had it made.”

On Friday, August 26, San Francisco 49ers quarterback Colin Kaepernick, for the third preseason game in a row, sat during the National Anthem. No one had noticed until then what he was doing. The country soon became aware when he was asked about it after the game.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” Kaepernick told NFL Media. “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.”

The instances of Tommie Smith and John Carlos at the ’68 Olympics, and Jackie Robinson in his autobiography, and the late Muhammad Ali on several occasions, have been celebrated over the years. But somehow, what Colin Kaepernick did crossed a line.

Players from all over the NFL ranged somewhere from agreeing completely with Kaepernick’s protest, to understanding and agreeing with his reasons, but not his method, to thinking he needs to keep his mouth shut. Some people believe that because of Kaepernick’s $120 million contract that he shouldn’t speak out. To me, that’s very interesting.

There’s this pervasive idea among the American populace, and within professional sports, that athletes, by virtue of their profession, lose their First Amendment right to freedom of speech.

In American jurisprudence there has been a long standing tradition of affording extra protection to the types of speech that are the most divisive, the most inflammatory. Speech that is popular does not need protection.

This is why organizations like the KKK and the Westboro Baptist Church, universally recognized as vile, disgusting organizations who represent the absolute worst in humanity, get to say what they want. It’s called the marketplace of ideas, a bit of philosophy coined by John Milton in 1644 and perhaps made most famous in the US by Justice Oliver Wendell Holmes in his dissenting opinion in Abrams v. United States.

The marketplace of ideas is based on market economic principles and the theory of supply and demand. In a marketplace of ideas, any belief that is good and functions will be bought by the masses, and any idea that is not good will not be bought, and it will go out of production, just as in a real marketplace. Good ideas are bought out and are in high demand, whereas lesser ideas sit around with no takers. And, just like in real economics, it is bad to manipulate the marketplace.

By allowing the marketplace of ideas to be free it will thrive, and our public discourse will be better, and the holders of popular ideologies need not worry about being overtaken by the unpopular ones: if those beliefs and ideas are truly bad, they will never gain a foothold.

Colin Kaepernick was the victim of such great ire because in the NFL, and for most people in the country, the American flag is synonymous with the military, and the sacrifices those brave men and women make to keep us safe, and to maintain our right to freedom of speech. Apparently, though, that right to free speech ends with criticism of the flag.

The problem with this line of thinking is this: Colin Kaepernick did not take issue with the American Armed Forces. In fact, he went out of his way to express a great deal of respect and admiration for our men and women in uniform. But because his chosen form of protest was during the National Anthem, and towards the American flag, people took issue because of that perceived connection, and instead of addressing the very real, very blatant issues that face African Americans today, the very reason Kaepernick was protesting, people started blasting him for how he did it, which is just asinine. And it allows people to ignore the meat of the issue.

News flash: protests are meant to be controversial. How else will people get the attention of the public in order to open up dialogue and affect real change? By issuing a press release and donating some money? No, that’s not how it works.

Since his protest, Kaepernick has changed from sitting during the anthem to taking a knee. He has met with former Green Beret and Seahawks longsnapper Nate Boyer, who said he and the 49ers quarterback had a very productive conversation. Kaepernick has been joined by teammate Eric Reid, and Seahawks cornerback Jeremy Lane, as well as Megan Rapinoe of the US Women’s soccer team. Support, it seems, is starting to swell.

For those in the world of professional athletics, such as US National Hockey team coach John Tortorella, who has said that if any player sits for the anthem they will sit the game, and those who share that sentiment, have done nothing but show a profound misunderstanding of what Kaepernick is doing and why.

The American flag symbolizes freedom and opportunity for all. Life, liberty, and the pursuit of happiness, as the Founders wrote. For Kaepernick, and most African Americans, that flag does not stand for what it should.

Colin Kaepernick has been attacked in the days since his protest first went public for being un-American and unpatriotic. But he’s just the opposite. A man standing up for the downtrodden, a man protesting injustice towards minorities, well that’s just about as American as apple pie.

Photo Courtesy: PBS.org

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