Freedom of Speech: Perception vs Reality

I used to be a fan of the National Football League. I enjoyed the speed of the game, the contact, and the mano a mano nature of the offenses and defenses. I lost any desire or interest in following professional football, in part, when the sports pundits shifted their focus and conversations from the game on the field to the issue of kneeling during the National Anthem. Colin Kaepernick is the primary face of this kneeling controversy. While there were other players who participated at different times in kneeing or remaining seated during the National Anthem, Kaepernick is by far the most recognizable participant.

This is not a discussion on the political correctness or incorrectness of not standing for the National Anthem. This is a discussion of the First Amendment to the United States Constitution as it relates to free speech. One of the prevalent discussions during the Kaepernick controversy was his “right” not to stand during the National Anthem. To paraphrase a consistent theme projected by those in the sports media and more mainstream news outlets, we have free speech in this country, and he has a right not to stand during the National Anthem. In one respect, this is true. He does have the right to kneel during the National Anthem, but he also may suffer any consequences from team ownership because this is an action that is not protected by the First Amendment.

We don’t really have total free speech in this country. What we have, at best, is limited free speech. You cannot go into a crowded room and yell, “Fire!” You cannot use language that is designed to induce panic. You cannot burn a cross in the yard of an African American. You cannot use “fighting words.” One does not have an unfettered right of free speech in the United States.

The Bill of Rights is the first 10 amendments to the United States Constitution. James Madison wrote these amendments, which list specific prohibitions on government power. These amendments were added to provide greater constitutional protection for individual liberties. What does the Constitution protect you from?  The Bill of Rights protects individual liberties from unlawful governmental intrusion.

The First Amendment states, in part ”. . . Congress shall make no law . . . abridging the freedom of speech.” Keep in mind that speech, in this case, is not limited to the uttered word. The United States Supreme Court has included symbolic free speech as an area protected by the First Amendment. In Cohen v. California (1971), the Court ruled that the First Amendment prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying the phrase, “Fuck the Draft,” in the public corridors of a California courthouse. In Texas v. Johnson (1989), the Court invalidated a Texas statute that prohibited the burning of the American flag, stating the burning of the flag was protected free speech under the First Amendment.  The Court issued a similar ruling on the federal statute prohibiting flag burning in United States v. Eichman (1990).  These are examples of symbolic free speech. In 1968, the International Olympic Committee suspended Tommie Smith and John Carlos for raising a black gloved fist during the playing of the “Star-Spangled Banner.” Avery Brundage, the president of the International Olympic Committee, interpreted this action to be a domestic political statement unfit for the apolitical, international forum of the Olympic games. As such, he suspended Smith and Carlos, banned them from further participation in the Olympics and ordered their removal from the Olympic Village. Granted, this took place in Mexico City, clearly outside of the jurisdiction of the United States Constitution, but it is an example of consequences that may arise when issues of speech are not protected by the First Amendment.

So why is the Kaepernick debacle not a First Amendment issue? It’s very simple. There was no unlawful intrusion by the government.  You can utter the same statement to two different people and obtain radically different results. For example, you get pulled over by a police officer and are issued a ticket for speeding. When the officer hands you your ticket, you respond by saying, “Kiss my ass!” Under most circumstances, provided you have not threatened the officer or raised your interaction to a level consistent with disturbing the peace, you will not be arrested for your comment. Should you be arrested, the arrest would be an unlawful intrusion by the government because this is protected free speech. Should you be called into your boss’s office for a personnel review and at the end of your review you tell your boss, “Kiss my ass!” there is a good chance you will be fired. You may have some protections in this event, but a First Amendment protection is clearly not one of them.

When you look at events like those surrounding Colin Kaepernick, ask yourself a couple questions: Was there intrusion by the government? And if so, was this intrusion unlawful? Answers to these may clear up a substantial amount of misconception concerning issues of free speech and First Amendment protection in this country.

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