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On kneeling during the national anthem

The President says he won’t watch baseball if players protest police brutality. Here’s why he’s wrong.

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Detroit Tigers Summer Workouts Photo by Mark Cunningham/MLB Photos via Getty Images

In the wake of the murder of George Floyd by police officer Derek Chauvin, MLB players have once again begun kneeling during the national anthem to protest police brutality towards Black Americans. During Tuesday’s scrimmages, Gabe Kapler became the first MLB manager to join the protests.

It’s worth noting that MLB players have a long history of protesting injustices in America using the national anthem or flag. Years before Colin Kaepernick’s brave stand in the NFL, Carlos Delgado protested the Iraq War and the United States illegally testing munitions on the people of his home island of Puerto Rico by refusing to stand for “God Bless America”. Decades before Delgado, Jackie Robinson, too, did not stand for the national anthem, writing that “I cannot stand and sing the anthem. I cannot salute the flag; I know that I am a black man in a white world.”

This has prompted a dismissive response from President Donald Trump.

Trump is wrong, though, and not solely on the morality of the issue. Back in 1989, the U.S. Supreme Court ruled in Texas v. Johnson that disrespecting the flag of the United States - whatever that means - is protected speech under the First Amendment.

Our precedents . . . recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” and that the Government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Texas v. Johnson was what we now call the “flag-burning case.”

Then there’s the Flag Code, often invoked by people who argue that kneeling for the national anthem or the pledge of allegiance is a sign of disrespect. But the Flag Code bans other things as well.

  • If you’ve ever worn the flag or a stars-and-stripes pattern on clothing, you violate Section 8(d) of the Flag Code.
  • The “thin blue line” or “Blue Lives Matter” flag violates section 8(g) of the Flag Code.
  • Flying the American flag during a thunderstorm violates Section 6(c) of the Flag Code.
  • Flying the American flag at night violates Section 6(a) of the Flag Code, unless it is illuminated with a spotlight.

In fact, the Blue Lives Matter flag and wearing this shirt are both greater violations of the Flag Code than kneeling during the National Anthem. If those are protected speech, so is kneeling during the national anthem. That’s why conservative Justice Antonin Scalia joined in the majority opinion in Texas v. Johnson that the ceremonial nature of the flag is exactly why all forms of speech concerning it must be protected.

If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol — as a substitute for the written or spoken word or a “short cut from mind to mind” — only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.

(Yes, that is correct: under the Flag Code, the appropriate way to dispose of a damaged flag in the United States is by burning it.) In short, the Supreme Court has unequivocally held that protesting a flag does not desecrate it, for the symbolism is honored equally both by supporting it and protesting it. Putting a blue line across the flag to defend police officers, however, does desecrate it, though that is also protected speech.

Maybe you think Texas v. Johnson was wrongly decided, but it frankly wasn’t. Years earlier, in 1974, the U.S. Supreme Court explained in a case called Smith v., Goguen why contempt for the American flag cannot and should not be criminalized:

[A] war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted . . . . Yet a member of the American Legion who, caught in the same rainstorm while returning from an ‘America — Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.

All of which is to say that Trump is absolutely, categorically wrong when he says that kneeling for the national anthem disrespects the American flag. But what of the country? Does kneeling for the American flag disrespect the United States? The U.S. Supreme Court in New York Times v. Sullivan expressly rejected the proposition that disrespect towards the United States or its government, in any nonviolent form, can be restrained.

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

And a few years later, the Court added that even advocacy of unlawful acts against the government can be protected speech. In other words, the First Amendment categorically protects the right of MLB players to protest, and further states that such protest respects, rather than desecrates, the American flag and government.

On the other hand, Trump’s proclamation against kneeling for the anthem is legally problematic in the extreme. Justice Robert Jackson wrote for the majority in West Virginia State Board of Education v. Barnette that “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.” That is, however, exactly what Trump purported to do via his tweet.

And, as I’ve written before, protests are certainly necessary on this issue. A police officer kills an American civilian every seven hours, and 84% of officers have said they witnessed a colleague use excessive force. Police officers continue to regularly use tear gas on protesters, despite tear gas being a chemical weapon banned in war by international law. In other words, every time police use tear gas, they are committing a war crime.

One police department in Skokie, Illinois, threatened to refuse to respond to violence at a school unless they were allowed to have a physical presence in the school at all hours, despite multiple reports of racial profiling and attacks by the police on students of color. Breonna Taylor, an EMT, was shot by police five times whilst she was sleeping in her own bed in her own home, yet officers did not request a paramedic or perform CPR for over 20 minutes whilst she bled to death; none of the officers involved have been charged with a crime. Police have repeatedly driven vehicles into crowds of protesters, killing and maiming dozens and drawing international condemnation.

What MLB players are doing by kneeling for the national anthem is a nonviolent way of drawing attention to the failings of our government. The police are an armed government paramilitary in the United States. If we saw images of the violence perpetrated by law enforcement against unarmed civilians in any other country, we’d be advocating for that government to be replaced. But here, we are taught that to oppose the use of force by our own government is unpatriotic. Right now, players like Amir Garrett and Pablo Sandoval and Joey Votto and Jack Flaherty and Phillip Ervin are heroes, snapping us out of that complacency and reminding us that people should not be afraid of their governments. There is nothing so precious to liberty as what they do now.

Sheryl Ring is a litigation attorney in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author’s. This post is intended for informational purposes only and is not intended as legal advice.