What does the First Amendment Say about Kneeling for the National Anthem?

(Don’t worry, we don’t get political here, you need to go to another blog for that sort of thing.)

 

With another Sunday in the books in the year of #taketheknee, and with an extra bit of drama with the Vice President walking out of a stadium after a couple dozen NFL players knelt for the National Anthem, a lot of people keep referencing the freedoms of speech and expression, kneeling for the anthem, and the First Amendment all in the same breath. So, what does the First Amendment have to say about these players kneeling for our nation’s anthem? Despite what’s bandied about, the answer is, “almost nothing.”

 

Here is the text of the First Amendment. It is, for reasons I’m happy to get into in a future post, one of the most beautiful, powerful, and important paragraphs we inherited from the Enlightenment.

 

“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.”

 

This amendment is special. Most of our legal principles have been inherited from the common law of England, Missouri even codified the “common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First…” See § 1.010 of the Revised Statutes of Missouri. However, the First Amendment protects our freedoms of speech, the press, and expression much more broadly than the law protects our former overlords across the pond. The countries of the United Kingdom and the European continent do not have First Amendments, that is something we tend to forget easily, and it’s a protection we often take for granted (click here for a decent, albeit slightly dated, summary of my point on a website I don’t vouch for).

 

What does the amendment mean? First and foremost, the amendment was concerned with “prior restraint,” meaning government censorship before publication or speech. A classic example would be a law that says you need to get government permission and license before you publish your book; if the government doesn’t like the content, you don’t get your license, and you don’t get to publish; that’s good ol’ fashion prior restraint. For one of the first major prior restraint cases from the U.S. Supreme Court, check out Near v. Minnesota. By the time Near came down in 1931 there was already a line of cases dealing with punishment for speech after the fact. For a truly terrifying look at where modern free speech jurisprudence started, have a look at Schenck v. United States (this is where the “fire in a crowded theater” comment comes from, you’ll note that’s not what the case is about, it’s also where “clear and present danger” entered the fold), Debs v. United States, and Abrams v. United States. These cases say, in so many words, “socialists are bad, especially when they don’t like World War I, they oughta go to the penitentiary for supporting draft dodging and general ne’er-do-welling,” (this is paraphrasing, of course).

 

Over several decades the protections of the First Amendment were broadened and, relevant to our conversation here, the Supreme Court reiterated that the First Amendment protects “expressive conduct,” in Cohen v. California, even if the mode of that expression is not simply the spoken word. In that case, a young man walked into a courthouse during the Vietnam War wearing a coat that said, “Fuck the draft, end the war.” He was convicted of disturbing the peace by offensive conduct, but, the Supreme Court noted, it was really speech that got him convicted. This was similar to a case from 1931 in which the Supreme Court said it is a violation of the freedom of speech to prohibit and punish the flying of a red flag as symbolic opposition to organized government (again with the socialists). Although no one “spoke” in these cases, the conduct was “political speech.” Thus, the First Amendment’s protections of speech are really protections of the ability to convey ideas. Justice Thurgood Marshall said it better than I can in Mosley

“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

There are a multitude of technical legal principles in First Amendment litigation that literally take up entire semesters in law school, so I won’t weigh you down with that here. What you will notice, though, is that all of these cases have to do with the government interfering in speech, not companies like the NFL. This is precisely why the First Amendment does not have much to say about taking a knee. Kneeling for the National Anthem as a sign of protest is the political speech that the First Amendment protects; if the government wanted to punish the players for kneeling, or if the government wanted to prevent them from doing so, the First Amendment would protest loudly and irreverently, but that is not the case as far as I’ve heard. The First Amendment protects us from government action, not our fans’ actions, our sponsors’ actions, or our bosses’ actions…unless we’re government employees (again, a topic for another day).

 

What’s that, you ask? What about student athletes taking the knee? Well, I’m sorry, we’ve just run out of time. But, I’m almost positive you’ll see those cases in the news real soon.

 

It should be obvious that this is not legal advice, but just in case, let me reiterate that here. If you need legal advice, please call us, don’t rely on blogs.

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