Kaepernick exercising protected speech

San Francisco 49ers' quarterback Colin Kaepernick has created quite a stir by refusing to stand during the playing of the National Anthem. He said that he takes this action because of what he sees as the continuing oppression of black people in the United States, especially by police.

This is not the first time in American history that a person or a group, for one reason or another, has refused to participate in what could be described as patriotic ceremonies. One rather dramatic series of events occurred during World War II.

By 1940, Adolf Hitler was already on the march in Europe and patriotic feelings were running strong in the United States. Against that background, a case wound its way to the United States Supreme Court that involved the refusal by the children of Jehovah's Witnesses to participate in recitation of the Pledge of Allegiance, perceived by them to be a violation of their religious convictions. The case was Minersville School District (PA) v. Gobitis.

In an 8-1 decision, the Court ruled that the interests of the country in instilling a sense of secular patriotism in its children outweighed the religious convictions of the Witnesses.

Ordinarily, such a lopsided decision could have been expected to stand for a very long time. After all, when the Court in Plessy v. Ferguson (1896) decided that "separate but equal" was a constitutionally acceptable practice regarding the segregation of the races, it stood until 1954 when it was overthrown by Brown v. Board.

Nevertheless, only three years later, while the World War was causing millions of casualties around the world, and Americans were being killed or wounded in combat by the tens of thousands, a second case involving the same issue and the Witnesses came again before the Court: West Virginia School Board v. Barnette (1943).

In a stunning reversal, the Court ruled in favor of the Witnesses. Some of the language in this decision is stunningly beautiful, and one famous sentence of it is quoted here:

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.

That quote bears directly on the behavior of Colin Kaepernick. His actions are undoubtedly repugnant to the majority of Americans, especially those who see the flag, not as a symbol of oppression, but rather as a symbol of liberty and unity. But the 1st Amendment was not created to protect forms of expression that almost everyone agrees with or is pleased to hear. It is precisely the unpopular opinion that needs the constitutional guarantee of what has come to be called "free expression".

In a technical sense, the 1st Amendment protects us only from various forms of government censorship. It was not intended to eliminate private forms of censorship. But at least in the spirit of the law, Colin Kaepernick is within his rights to do what he is doing, however angry many Americans might be in response to his actions.

To use a familiar expression, I may hate what you say, but I will defend your right to say it.

Perhaps Mr. Kaepernick will come to the realization that the flag he will not honor is the same living symbol that makes it possible for him to engage in his chosen form of protest. Perhaps he could bring himself, if nothing else, to at least acknowledge and honor that.

Filko lives in Williamsburg and has taught Economics and American Government.

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