The NFL and the Flag: Free Speech or Patriotism?

Dr. Sarah Perez, instructor,EKU Department of Government & Economics

“You can't pick and choose which types of freedom you want to defend. You must defend all of it or be against all of it.” Scott Howard Phillips[1]

The debate over whether NFL players should have to stand for the national anthem has been going on for over a year. It began when Colin Kaepernick refused to stand for the national anthem, and has led to more players, coaches, and staff following his lead. It has also led to intense debate in America over patriotism, race relations, and the right to free speech. The debate has even reached the White House, with President Trump calling those who do not stand for the anthem names and suggesting that they should be fired.

NFL players insist that the reason they are refusing to stand for the national anthem has nothing to do with disrespecting the flag or the military, but instead are protesting perceived social injustice, racial injustice, and police brutality. Instead of protesting the military, the NFL players are instead protesting until all Americans receive the freedoms that the military fights for. This situation has led to intense debate in the United States about acceptable forms of free speech, and when it is acceptable to exercise one’s right of free speech.

Argument: what are people disagreeing about

It is helpful to understand both sides of the conversation before coming to a conclusion. As in any debate, there are at least two sides of the story.

Those who support the NFL players argue that professional athletes are uniquely positioned in the national spotlight and are able to bring widespread attention to issues that they deem important. Further, they argue that these players are engaging in a form of peaceful protest, which is protected under the 1st Amendment. In their minds, it is a legitimate form of protest if a country like the United States is not living up to its ideals and values.

Those who do not support the NFL players argue that sporting events should not be places of political protest, and that refusing to stand for the anthem disrespects the flag and military. They also argue that this form of protest is ineffective in promoting the player’s cause. Finally, they argue that not standing for the anthem angers the viewers and makes the existing divisions in our country worse.

What does the discipline say: interpretations of the constitution

Of course, in the United States we rely on law to tell us what behavior is acceptable and what behavior is not acceptable. It seems imperative to examine what the Constitution says about free speech, and also what the Supreme Court has ruled are legitimate forms of speech and what are not.

According to the 1st amendment of the Constitution: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. While this helps to clarify what the limitations on government are in regards to freedom of speech, it does little to clarify what limitations there are on free speech when the speech does not involve the government.

Fortunately, the Supreme Court has helped to clarify freedom of speech in various instances. According the Court’s decisions, freedom of speech includes the right not to salute the flag (West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)), the right to symbolic speech, including burning the flag (Tinker v. Des Moines, 393 U.S. 503 (1969); Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990)), the right to use offensive speech to convey political messages (Cohen v. California, 403 U.S. 15 (1971)), and to contribute money (under certain circumstances) to political campaigns (Buckley v. Valeo, 424 U.S. 1 (1976); Citizens United v. Federal Election Commission 558 U.S. 310 (2010)). We can see from these decisions that the Court has ruled that there are many forms of legitimate political speech and that such speech is not simply limited to spoken words.

The Court has also specified what is not included in freedom of speech. This includes such activities as incitement (Schenck v. United States, 249 U.S. 47 (1919)), making or distributing obscene materials (Roth v. United States, 354 U.S. 476 (1957)), burning draft cards as an anti-war protest (United States v. O’Brien, 391 U.S. 367 (1968)), and advocating illegal drug use at a school-sponsored events (Morse v. Frederick, __ U.S. __ (2007)). Again, these decisions help us to narrow our conception of what is legitimate political speech.

According to the Constitution, it appears that the NFL players do have a constitutional right to free speech and protest, and are acting within the legal parameters that have been set out by the Supreme Court. With a legal question set aside, the question becomes if it is correct to use rights in such a manner.

So, can speech be stopped?

Sometimes, people do not speak out against injustice because they fear the reaction of others. In some cases, it becomes a question of what exactly is political speech, and what is speech that is intended simply to get a reaction. Another question then becomes about speech that some may consider offensive. In considering whether offensive speech should be allowed we can consider such things as how many people are offended and the general interest of the community. In arguing this, however, it becomes necessary to prioritize one set of values over another. In other words, we must compare the value of free speech with the value of some other good, in this case patriotism.

One of the biggest issues at hand in any debate about freedom of speech deals with the competing values of a society. In this instance, the competing values are those of respecting the flag and using an elevated public platform speaking out against injustice.  If one can show a direct harm to another person’s rights, then it would seem that a sanction would be sensible. If one cannot, however, show harm then it may not be legitimate to impose a sanction on the person or persons speaking.

Published on December 15, 2017