Colin Kaepernick and other NFL players used the moment of the national anthem, in their respective games in NFL opening games, to make political “statements”. Kaepernick sat for the anthem. Four Dolphins took a knee. Various Patriots and Chiefs raised a fist during the anthem. Kaepernich, particularly, also added to his actions a testament to say why he did this:
"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color," Kaepernick told NFL Media in an exclusive interview after the game. "To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder."
Not surprisingly, these actions induced a heated response against the players. People thought these actions were disrespectful, and weren’t shy about saying so.
Not surprisingly, the left wing of the “anything that attacks my country is fine with me” crowd reacted to the reaction with their own misplaced anger, like so, by Nancy Armour:
NFL players protest on 9/11, and that's fine… On 9/11, of all days, there were some who wanted to dictate what’s “appropriate” when it comes to respecting this country. Who decided symbols are more important than what they actually represent. …[snip]… Peters and the Dolphins players stood during the 9/11 observance shown in all stadiums. Their signs of protest came after, during the anthem, a nuance that is sure to be lost on those who criticize them. They did not disrespect those who lost their lives 15 years ago and, even when they raised a fist or took a knee, they did not disrespect those who served or their country, either.
No, they disrespected the nation, instead.
What I want to point out is that Armour makes a really basic mistake. Freedom of speech laws, and Constitutional provisions, don’t make speech free in every sense. They mean that the subject speech is free from LEGAL penalty. That’s all. No more than that.
There is no power on Earth that can make objectionable speech free from social penalty. If you say things people don’t like, they will react with scorn, disdain, insult, and with other things that have more power to affect you, such as: they won’t play with you, they won’t contract with you, they won’t do business with you, they won’t even speak to you. You can’t stop these responses. And they are not a matter of law at all, they are social behavior. And responses like this are perfectly appropriate to socially disgusting actions. It’s WRONG to say that disgusting actions “are fine with me”, even when your major premise is the true statement “they aren’t illegal”. We ought to not be fine with disgusting legal behavior, we ought to react to it with disgust.
The Constitution, which forbids that Congress shall make laws restricting free speech, does not forbid private corporations and businesses from imposing commercial penalties on your speech that they don’t like. The NFL regularly penalizes athletes who put unauthorized words on their uniforms, and nobody thinks that this is an illegal penalty. If you are an athlete who doesn’t like having your speech limited so, don’t play in the NFL. It’s simple. The NBA already has a rule about standing for the anthem. There is no outcry that this is unconstitutional.
My second point is that the “speech” Kaepernick and the others were engaging in (if you even want to call it speech and have it addressed by the Free Speech Clause) is incredibly ill-chosen (so-called) speech. Here’s the thing: actual speech is a LOT more capable of nuance and specificity than actions and gestures, for carrying thought or sentiment. If someone asks you “in what direction is the ball park”, and you point rightwards, your gesture might mean that the ball park is directly in that specific direction as the crow flies, or you might mean that the road you want to take to get there is the one rightwards even though it takes several more turns to get there, or you might mean that (either of) these are roughly rightwards, within 20 or 30 degrees of angle. The mere gesture cannot distinguish between these intentions. Words can.
A flag, or an anthem, stands implicitly for many, many things, truths, sentiments, ideas, realities. They stand for them on many different levels, with varying priorities, in different senses (literal, metaphorical, mythic, spiritual). An act or a gesture that repudiates a flag or an anthem cannot, on its own, distinguish what, specifically, you are repudiating out of all these meanings – or whether you are repudiating ALL of them together. As communication, it is wholesale, not retail. OK, you have registered antipathy, but to which meaning, on what level, with what object? More importantly, is there any reason that we should take your action other than as a repudiation of the whole set of meanings, on all levels? Why shouldn’t we? If you are going to CHOOSE an act that you know beforehand is completely indiscriminate, aren’t we justified in thinking that your object is, also, indiscriminate?
Jonah Goldberg has this to say:
Kaepernick isn't being asked to salute rogue cops, or even cops generally. He's being asked to show respect not just to the flag but to a nonpartisan custom. Instead he offers a blanket indictment of America itself and vows to hold his compliance hostage to his personal assessment of complicated social issues.
Typically, these people don’t actually object to every facet of America. Kaepernick later said so. They don’t seem to object to the NFL, for example, which, let me remind you, is the National Football League. So, their actions were stupidly chosen.
But that’s not all. We know about the actual intentions only because we have (at least from Kaepernick), words as well explaining his behavior. And those indicate a person both befuddled and ill-willed: Befuddled because he is apparently incapable of discerning distinctions that are necessary for right thinking and right behavior. Ill-willed, because he has chosen to regard his nation as evil in ways that it is not, and this stems from a choice to disregard the natural motives to respect and love his nation. It is a lack of piety. Even a nation imperfect (as every nation ever on earth has been) is to be respected and loved properly.
[Summa Theologica, IIa IIae, Q. 101, A.1 ] On the contrary, Tully says (De Invent. Rhet. ii) that "it is by piety that we do our duty towards our kindred and well-wishers of our country and render them faithful service.”
I answer that, Man becomes a debtor to other men in various ways, according to their various excellence and the various benefits received from them. on both counts God holds first place, for He is supremely excellent, and is for us the first principle of being and government. In the second place, the principles of our being and government are our parents and our country, that have given us birth and nourishment. Consequently man is debtor chiefly to his parents and his country, after God. Wherefore just as it belongs to religion to give worship to God, so does it belong to piety, in the second place, to give worship to one's parents and one's country.
These men misunderstand the implications of this social virtue. I would enjoy seeing the NFL impose rules that require athletes to stand for the anthem, with a sliding scale of fines (graded to salary). Not because I think such rules will accomplish getting disaffected athletes to think more properly about the nation, but because by imposing fines with real teeth, we could more easily distinguish between those who in it for principle, and those who are mere dilettantes and fashionistas. What I would like even more, is for people to start giving Kaepernick the finger everywhere he goes, for sales of his jersey to plummet, for his ads to flop and for his promotion offers to dry up: for people to show they won’t abide a player like that using his platform to publicly disrespect what they love, and what he too ought to love. LSU’s Delta Kappa Epsilon provides an example of what I mean. And you have to laugh at the contortions the lily-livered liberals have to put themselves through to pretend not to object to their "right to comment" but still try to suppress their comments.
The third issue is more problematic: some people would like to see laws forbidding direct disrespect to the flag and the anthem: Anti-sedition laws. I am of two minds about this. On the one hand, in the current climate, any attempt at such laws would founder in about 10 minutes at the Supreme Court. The effort would be wasted unless there was a Constitutional amendment. Which is not going to happen. And even if it did happen, one would have to worry about the trend this set, given the degenerate moral climate, possibly leading to government intrusion into other speech (and actions) that should not be touched.
On the other hand, I do think that the principles underlying anti-sedition laws are wrongly understood and wrongly adjudicated in prior precedent. I think it is reasonable to ask whether we have found the right basis for speech rights and their limits IN GENERAL: can a good political order have and enforce anti-sedition laws of any sort, and if so, what are the limits?
Those who have followed my comments over the years can predict my answer: yes. In principle. First, recall that “free” speech rights are not unbounded, they don’t extend to libel, fraud, inducement to public disorder (starting a riot, “fighting words”, or lies such as yelling “fire” in a crowded theater). Nor are the limits based solely on falsehood: they do not extend to giving out critical truths to our national enemy in war (espionage laws forbid this).
Each of these examples are well-debated matters, and even in our lax society the SC upholds all of these restrictions on free speech. To state it simply: the common good REQUIRES that the state act to limit speech damaging to the common good.
In principle, this truth also can be used to justify laws prohibiting sedition under certain conditions, for certain limited sorts of seditious acts. The SC has required that the prospective damage be not just speculative or remote, but more determinate:
The trial judge instructed the jury that they could not convict unless they found that petitioners intended to overthrow the Government "as speedily as circumstances would permit," but that, if they so found, then, as a matter of law, there was sufficient danger of a substantive evil that Congress has a right to prevent to justify application of the statute under the First Amendment.
However, I distinguish speech or actions that DIRECTLY attacks or contemns the US, the whole nation, the whole public order, the whole polity: these are not aimed at some part of us that is in need of reform, or something that can be “fixed” if we pay attention to this guy, they are aimed at the very reality of the state and the social entity. Nor are these acts indicative of future acts that may damage, they ARE, themselves, evils perpetrated upon the common good. Every natural entity that has a right to exist has a right to protect itself from attack, and reacting by legal means to this kind of attack is just the proper response for a state – in the right conditions. These acts are not wrong because they might lead others to violence and criminal acts, they are wrong because they are impious in and of themselves. [Speech that directly attacks narrower targets, such as “this government” (e.g. “the Bush Administration” or “the Obama Administration”, or even “the current Constitution”) are not the same thing and have moral defenses that the former do not.] I don’t want to get deep into the nitty-gritty and the ins and outs of when and how much. Suffice it to say that if laws restricting free speech to prevent riots and to prevent espionage are rightful ways of state protecting the common good, then in principle there are also limited times and ways in which it is possible for impiety to be a sufficient evil to target, a sufficient matter for law to defend the common good against: there is no principle that makes it that such laws are always more damaging to the common good than tolerating the behavior is. And that’s all you need to make such laws appropriate in principle.
So this would theoretically permit criminalizing explicit acts of impiety to the US as such, on the primary level. Secondarily: The flag, for example, is a formally enacted symbol of the whole United States (unlike many other symbols). As support of the public virtue of piety, the nation and polity are entitled to at least not to be mocked and contemned by its own citizens, and mocking the official symbol of it does just that. So, acts that consist of publicly rejecting the flag would justify the state publicly repudiating the person: take away his citizenship, or legal residence (i.e. banishment), or similar responses. “Hey, if you think the US is so awful that you think you should repudiate the WHOLE ENCHILADA, you can damn well do without it: Get out.” Or (what would be perhaps even worse, but only indirectly so), withdraw the protections of the law for such an offender – he can no longer use law to sue for infringement of rights, for example. These are some of the natural implications of taking his behavior seriously.
These would be very onerous penalties to most people. But if we were to take these people at their own word, such penalties would not be all that horrible to them: they already repudiated us and our nation. Alternatively, you could allow for a more lenient penalty if the person simply apologies (in just as public and fulsome a manner as the original act) for his impiety. Oh, you didn’t mean you were repudiating America? Well, say so, and we’ll reduce your penalty accordingly.