America has a love hate relationship with the First Amendment. It is an Amendment everyone is certain applies to his or her words and actions, but does not apply to the ideas and ideals of others with whom they disagree. It is often misquoted and misunderstood. Mostly, our First Amendment rights are unevenly valued and at times a shield for cowardice. This is one of those times.
Recent protests by a professional football player have again kicked off an American discussion on the First Amendment. When NFL player Colin Kaepernick decided to sit for the national anthem in order to shed light on what he believes is injustice and inequality by the government aimed at minorities, Americans began crowing loudly about free speech. The Kaepernick case is not about free speech. The Government cannot make Mr. Kaepernick stand for the anthem. If it tried to do so, then this would be a First Amendment issue. His league and employer govern Mr. Kaepernick’s conduct in uniform and on the field. By permitting his protest, the NFL and 49ers are not granting him First Amendment rights. He has those. They are permitting him to use their stage to express his opinion. After all, if he sat for the anthem in his house, who would know? Mr. Kaepernick is the rube, not the coward in this play.
The NFL isn’t defending Constitutional rights from getting sacked. It and the 49ers are using the Constitution as a shield from making a hard but necessary decision. Why not fine, suspend, or cut Mr. Kaepernick? After all, Mr. Kaepernick’s NFL sponsored “free speech” includes standing in his uniform and in an NFL locker room referring to cops as “murderers” and “oppressors.” Mr. Kaepernick’s color and the NFL’s greed are why Kaepernick and his ilk continue to foist their hate upon our country. Who will fire a minority quarterback in a majority, minority professional football league that prints money? Which owner wants to risk spilling gravy from the train and being called a racist for doing it?
To Mr. Kaepernick’s credit, it is not a very popular move to thumb one’s nose at one’s country. While I think Kaepernick is a useful idiot for race-hustling profiteers, he knows the NFL fears matters of race, and it is too spineless to put country ahead of color or patriotism ahead of profits. He’s forcing them to eat his crap sandwich as an appetizer to a plate of profits.
If you want to see how the NFL values First Amendment rights differently based on fear and profit ask yourself this: Why would a league fine players for saluting and giving tribute to the fallen on 9/11, but stay silent on a protest that attacks the character of America? Cowered by fear, motivated by greed, and mostly engaged in faux patriotism, the owners hide behind “free speech” because it suits them, and honestly, none of them has the same guts as Kaepernick. The owners are not alone. When is one of the “men” on one of these teams going to grab one of these disrespectful, kneeling chuckleheads, and drag him to his feet before old glory? The first owner and first player to make a stand for America is a hero in waiting. Who will be the NFL’s Rick Monday.
Mr. Kaepernick calculated that his message of division and disrespect would get attention and draw no action from the NFL. He was correct. Ironically, he might have exercised a different First Amendment right to gain attention and better serve our collective American cause of justice. Instead, his disease of disharmony has spread. Look at coach Preston Brown of the Woodrow Wilson High School football team in Camden, NJ. Coach Brown led a protest where he and the vast majority of players knelt down during the playing of the National Anthem. The coach insisted he did not require the players to do so, and a few courageous players did not. The coach wanted to bring attention to what he described as “social injustice” and “economic disparity.” Remarkably, the Camden school district came out in support of the players.
One wonders what might have happened if Coach Brown decided that instead of using his position of authority to influence kids to join his protest, he had instead asked them to join him voluntarily in a Christian prayer to support people suffering from “injustice” and “economic hardship.” Raise your hand if you think the Camden City School District would have expressed its pride in its students and its tacit support of those First Amendment rights to freedom of religious expression. Would the equal right of religious freedom win the same tacit support for Constitutional protection as an NFL protest based on racial fear? What would have happened if Mr. Kaepernick kicked off a prayer movement, instead of a disrespect movement?
I cannot imagine how a message of disrespect and disunity would serve their teams, community, or our country. It is their Constitutional right to be dead wrong, and our duty to let them know about it. Indeed, instead of following the failed instinct of social justice warriors to embrace division by attacking the symbols of freedom, Coach Brown and Mr. Kaepernick might have better advanced the ball had they sought the solidarity of faith.
The NFL’s phony embrace of this anti-cop ruse must end. These protests it permits and support are dreadfully divisive. The owners’ greed and fear are a game changing fumble for America, and they have nothing to do with the First Amendment. Now, we wait, to see which American will lead the offense and get decency and respect back in the game.
Richard Kelsey is an Assistant Law School Dean. A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company. He has previously taught legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His opinions are his own, and do not represent any institution or entity.