Not Standing For It

NFL Players’ Protests Put The Spotlight On Conscience-Based Objections To Patriotic Rituals

For much of his presidency, President Donald J. Trump has spent significant energy feuding with members of the media, cel­e­brities and others who criticize him. But he recently ramped things up to include a new target: professional football players who choose to take a knee during the playing of the national anthem before each game.

Since former San Francisco 49er quarterback Colin Kaepernick began taking a knee during the national anthem in 2016 to protest racial injus­tice and police brutality, kneeling, sitting or responding in any other way than standing and facing the flag while the national anthem is being played or sung, has become a topic of national controversy. With the new football season in session, Trump decided to blast the protests, likely knowing it would play well with his far-right base.

Trump has used Twitter, one of his favorite platforms, to make his views known. He has also brought the mat­ter up in speeches. 

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out; he’s fired? He’s fired!’” Trump said at a Sept. 23 rally. “You know, some owner is going to do that. He’s going to say, ‘That guy that disres­pects our flag; he’s fired.’ And that owner, they don’t know it [but] they’ll be the most popular person in this country.”

Many National Football League players have emphatically denied that they’re protesting against the national anthem or the American flag and don’t want Trump’s com­ments to distract the public from their intend­ed message, which is speaking out against racial inequality and advo­cating for the United States to im­prove its treatment of people of color and minorities.

“We [players] were all obviously con­­­flicted. We knew our message would be perceived by a lot of people in a way that wasn’t what we were trying to put out,” Devin McCourty, a de­fensive back for the New Eng­land Patriots, said in a Sept. 24 inter­view while wearing a T-shirt that said, “No Place for Racism, Fascism, Sexism and Hate.”

Even if NFL players were hypo­thetically protesting the national anthem, they would still be able to claim it as a legitimate issue of free speech under the First Amendment. Generally speaking, under the First Amendment people can’t be compel­led to stand for patriotic or religious ceremonies if they don’t want to. That includes the national anthem.

Although the NFL is a private enti­ty, that doesn’t mean that team owners have an automatic right to compel players to take part in rituals that might offend their right of con­science. Depending on the circum­stances, employees don’t lose all their constitutional rights as soon as they clock in for work.

Trump’s comment about players protesting, many observers charged, underscore his lack of respect for the right to dissent. This hasn’t fazed the president. Despite many people re­acting negatively to his comments, Trump has ramped up his rhetoric against NFL players and even drafted allies into the crusade.

On Oct. 8, Vice President Mike Pence showed up for a game between the Ind­ianapolis Colts and the 49ers in Indi­anapolis. Pence, the former gov­ernor of Indiana, wasn’t there long. He and his wife stormed out after some of the 49er players knelt during the playing of the national anthem.

The move was widely perceived as a publicity stunt, and came with a hefty price tag: The Washington Post reported that it cost taxpayers $200,000 for Pence’s travel expenses to and from the game.

“I asked @VP Pence to leave stadium if any players kneeled, dis­respecting our country. I am proud of him and @SecondLady Karen,” Trump tweeted shortly after the stunt. He later admitted in another tweet, “The trip by @VP Pence was long planned. He is receiving great praise for leaving game after the players showed such disrespect for country!”  (NFL Commissioner Roger Goodell has declined to say that players must stand for the anthem, leaving the matter in the hands of individual team owners.)

Trump may have been targeting NFL and other professional sports players, but his comments quickly moved beyond that realm. They soon sparked discussion of the rights of students in public schools. 

The NFL players’ actions have struck a chord with some public school athletes. NPR reported recent­ly that many of them are protesting racism by taking a knee during the playing of the national anthem at school sporting events.

But some school officials are not happy with the student protests and are determined to squelch them. An ex­­ample is Waylon Bates, principal of Parkway High School in Bossier City, La. In a Sept. 28 letter to student-ath­letes and their parents, Bates stated that players are “required to stand in a respectful manner throughout the National Anthem during any sporting event.”

Students who refuse to stand, Bates said, will be punished. They can receive reduced playing time or be kicked off the team outright.

Another public school principal, Mar­tha Strother, expelled student India Landry from Windfern High School in Houston Oct. 2 for sitting during the Pledge of Allegiance. The teen is suing the school. 

The lawsuit notes that Landry has sat during the Pledge many times, but it wasn’t an issue until Trump’s com­ments about NFL players caused the school to become “whipped into a frenzy” regarding patriotic rituals.

Although Landry was allowed to return to school later that week, she remains fearful that her right to remain seated during the Pledge still won’t be respected. 

Similar incidents have occurred in other states. Legal observers were quick to point out that when it comes to public school students, the legal precedent is clear: Students can’t be forced to take part in patriotic rituals against their will, or even be com­pel­led to stand. This is not a new idea. Students have the right to decide if they will take part in such rituals thanks to a 1943 church-state case called West Virginia State Board of Education v. Barnette.

The Barnette case occurred in the public school context and concerned the Pledge of Allegiance, not the national an­them – but the underlying principles of the decision, which, generally speaking, protects Ameri­cans from being forced to participate in patriotic rituals, are applicable in both cases.

Many states used to have laws requiring public school students to salute the flag and recite the Pledge of Allegiance every morning. Jeho­vah’s Witnesses argued that their only allegiance was to God, and instructed their children not to take part. As a result, Witnesses’ children were expelled from some public schools, and the matter entered the courts.

In 1940, the U.S. Supreme Court voted 8-1 to uphold mandatory parti­ci­pation in the flag ritual in public schools in a case from Pennsylvania titled Minersville School District v. Gobitis. But just three years later, the high court – which by then had gone through a few personnel changes – took up the matter again and ruled 6-3 the other way in Barnette.

The high court, in the latter case, asserted that forcing students to take part in the flag salute and the Pledge of Allegiance was a violation of their First Amendment rights. (At that time the “Bellamy salute,” named for Francis Bellamy, author of the Pledge of Allegiance, was part of the ritual. Students faced the flag and saluted it stiff-armed with the palm up, a salute which was dropped during World War II because it was too similar to the fascist or Nazi salute – stiff-armed with the palm down.)

“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,” Justice Robert H. Jackson famously wrote for the majority in the Barnette ruling.

The Supreme Court reversed itself so quickly in part because many Jehovah’s Witnesses were attacked in the interim. Some commentators of the time noted the irony of Jehovah’s Wi­t­nesses’ being discriminated against in the United States at the same time as they were being perse­cuted in Nazi Germany, the countries it was occupy­ing and perhaps other fascist-ruled countries as well.

Although NFL players and some public school student-athletes are not objecting to the national anthem for religious reasons, as students in the Gobitis and Barnette cases did, Bar­nette laid down a powerful rule: If participation in a patriotic ritual clashes with the right of conscience, the latter will usually take prece­dence. 

Critics have pointed out that Trump’s comments and his politi­ci­zing of the issue are sowing confu­sion in America’s public schools. 

“Trump’s NFL bullying is filtering down to America’s schools,” The Washington Post observed in an Oct. 9 editorial. “In the absence of lead­ership from the White House, [Jus­tice] Jackson’s words are more important than ever as a reminder that dis­a­greement and diversity are at the heart of the American experiment.”