Patriotism, respect for flag cannot be 'ordered'

Sep 29, 2017


By Gene Policinski
Inside the First Amendment

Donald Trump is singing the wrong song about freedom, patriotism and First Amendment values. Over the weekend, Trump:

  • Called on NFL owners to fire players who kneel or otherwise protest during the national anthem and display of the American flag
  • Said fans should stop going to games to punish NFL team owners who fail to dismiss those players
  • Observed that patriotism should be required of athletes in return for "the privilege of making millions of dollars" on the field.

Trump couldn't be more off-tune about how to honor our flag, or more off-key on the core values of the First Amendment. It's also worth noting he's out of sync with what our own history tells us of failed government attempts to mandate patriotism with a law or an enforced ritual.

At the root of this weekend's controversy was a decision made last year by one player, former San Francisco 49ers quarterback Colin Kaepernick, to kneel or sit during the national anthem. He said it was a way of protesting continued discrimination "against black people and people of color." As this season began, a few more players began making similar gestures, some specifically in protest of police shootings of black men. For an as-yet unexplained reason, Trump chose Friday evening to make the protests into a national controversy.

"Wouldn't you love to see one of these NFL owners, when somebody disrespects our flag, to say, 'Get that son-of-a-bitch off the field right now. Out. He's fired. He's fired,'" Trump told a campaign rally in Alabama. Trump said such protests are "a total disrespect for everything we stand for."

A chorus of critical replies by NFL owners, athletes and others followed, with Trump swiping back almost immediately on Twitter — all of which sent the bitter debate soaring into the Sunday talk-show circuit and even more visibly onto Sunday's NFL game fields.

In London, Jacksonville and Baltimore players, joined by Jaguars owner Shahid Khan, locked arms and some knelt during the anthem. By Sunday evening, there were reports that more than 100 players had knelt, sat or otherwise signaled protests during the anthem.

Multiple owners also pushed against Trump's admonition, saying they support players' sincere attempts to call attention to serious social ills. New England's Robert Kraft, described as a longtime Trump buddy, said he was "deeply disappointed by the tone of the comments made by the President." Kraft said, "I think political leaders could learn a lot from the lessons of teamwork and the importance of working together toward a common goal," and that he supports players' "right to peacefully affect social change and raise awareness in a manner they feel is most impactful."

Those last words echo a 2011 Supreme Court decision that defended free speech even under what most would consider despicable circumstances — using funerals as places of political protest. In writing the majority opinion in Snyder v. Phelps, Chief Justice John Roberts wrote "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

As the Sunday talk shows began rolling, administration surrogates fanned out in Trump's defense. Treasury Secretary Steven Mnuchin, speaking Sunday on ABC's "This Week," was technically correct when he said team owners, as private business owners, could have a rule requiring their players as employees to stand during the anthem. But he continued the administration's tone-deaf approach to First Amendment values and high-profile athletes' part as national role models by adding, "They can do free speech on their own time."

The 2011 Snyder ruling held that those speaking out on matters of public interest should not be punished for finding an effective place from which to be heard.

Our nation was born of dissent — skillfully documented in Stephen Solomon's "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech" — and has a long history in which public protest both echoed public sentiment or brought marginalized views into the mainstream consciousness, from Colonial-era protests over taxes to the long battle over slavery and segregation, to women's suffrage and dozens of other major issues. Even before they were written into our Constitution, the First Amendment rights of free speech, press, assembly and petition have been the engines of social change.

The principle behind protecting unpopular protests was upheld in 1989 in a case that declared that even desecrating the flag itself as a means of protest was beyond the power of presidents or Congress to exact punishment. "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," the court said in Texas v. Johnson.

Other administration officials said Trump has a right — perhaps even an obligation — to speak out for the millions of citizens who do not want to see disrespectful conduct toward the flag or national anthem. Trump certainly has a right to defend respect for national symbols. But our rights don't depend on public sentiment of the moment, game attendance or television ratings.

We've been through this kind of faux-patriotism brouhaha before, with authorities trying to mandate respect of the flag or at least the show of it. There are disturbing echoes of McCarthyism's worst abuses of the power of the presidency to cause people to be fired for expressing dissenting views. There are some who already say there is an unspoken league "blacklist" against Kaepernick, who remains unsigned this season.

Issues of patriotism, national defense and free speech were also strongly contested during World War I. In 1919, Supreme Court Justice Oliver Wendell Holmes declared that, excepting speech that calls for imminent and direct harm to the nation, "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

In 1940, in Minersville School District v. Gobitis, the Supreme Court upheld a Pennsylvania law requiring students in public schools to stand and recite the Pledge of Allegiance — even those with religious objections.

In overturning that decision just three years later, after a spate of violent incidents in which authorities attempted to force people to salute the flag, Justice Robert H. Jackson observed — in an opinion released on Flag Day — that "to sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind."

Dismissing such governmental hypocrisy, Justice Jackson also delivered a stirring defense of the Bill of Rights in West Virginia State Board of Education v. Barnette, writing, "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."

The next time Trump — who it should be noted, claims Flag Day as his birthday — feels like challenging that free speech "fixed star" in our national firmament, he ought to pause ... and just "take a knee."

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at Follow him on Twitter: @genefac