– First Amendment to the Constitution of the United States of America, 1789.
I disagree wholeheartedly with what Colin Kaepernick and other football and baseball players are doing when they kneel or sit during the anthem. It is a disrespectful act. However, I will unceasingly defend their right to do it, because that right is protected under our first amendment.
Colin Kaepernick has a first amendment right to kneel. In fact, we all have a first amendment right to protest the actions of our government. And as the party of small government, Republicans should not be supporting the involvement of our government in discouraging protest, or regulating protest in any way. We are the party of fewer regulations.
During the Reagan Administration, the Supreme Court determined that acts of protest are protected under the first amendment, so long as there is no breach of the peace or imminent threat of lawless action. SCOTUS held in Texas v. Johnson, 491 U.S. 397 (1989) that laws against burning or otherwise desecrating the American flag were invalid as unconstitutional.
The Court specifically said: “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.”
So what kinds of speech are not protected under the first amendment? Speech that breaches the peace, speech that incites “imminent lawless action,” according to the test from Brandenburg v. Ohio, 395 U.S. 444 (1969). The kind of speech and action that happened in Charlottesville, for example.
Do I agree with Colin’s actions? No. Would I ever kneel or refuse to acknowledge and honor our National Anthem and flag? No. But I will always defend his right to do it, to say it, to disagree. If we lose our ability to peacefully disagree, we lose a fundamental right upon which many of our other freedoms are based. Remember, the first amendment also protects peaceful assembly and freedom of religion.
Justice William Brennan, who wrote the majority opinion in Texas v. Johnson, said this: “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.”
Justice Anthony Kennedy wrote a concurrence to the majority opinion, agreeing with the reasoning that although the act of flag burning was an act of disrespect, it was still a protected expression under the First Amendment, no matter how distasteful it was to him.
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.”
Kennedy went on to say: “Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
Kaepernick’s actions are disrespectful to the Anthem and the flag. They certainly do not rise to the level of flag burning. Conservatives who are outraged by his conduct would do well to consider the rights they are arguing against, as the same constitutional amendment that protects our kneeling in church on Sunday mornings is the same constitutional amendment that protects Kaepernick’s kneeling on the football field on Sunday afternoons.