‘Sweet Land of Liberty’: Colin Kaepernick and Freedom of Speech

Thomas Ascik | October 26, 2016 | 745

‘Sweet Land of Liberty’: Colin Kaepernick and Freedom of Speech

Every week for two months, quarterback Colin Kaepernick of the American professional football team the San Francisco 49ers has refused to stand during the playing of his country’s national anthem.  He has instead knelt down as his protest of alleged systematic racism in American society and in solidarity with the powerful Black Live Matters movement.  His actions have caused a great deal of controversy, but he also been supported by many. 


Much of the controversy has revolved around the issue of free speech. San Francisco 49ers’ employee Colin Kaepernick has no unlimited right of free speech, of course.  Private citizen Kaepernick has that right, but he has not been interested in that.  However, Kaepernick’s refusal to acknowledge his country during the playing of the national anthem in a public stadium has now been endorsed by 49ers coach Chip Kelly, owner Jed York, and National Football League Commissioner Roger Goodell, that is, those who own and control the high-visibility platform he expropriated.  


Kaepernick is exercising more than his right to free speech.  By taking over football games in this visually-oriented age, he has performed very public acts. And the strong overall impression of his actions and his words is a fundamental denunciation of the country itself, “a flag for a country,” not just of its faults, and certainly not of any of its possible virtues.  What is more, in a part of his statement that has been completely ignored, he accused police officers of and used the word “murder”: “There are bodies in the street and people getting paid leave and getting away with murder."  Such is the quality of our public life when rich celebrities, with no known background or acknowledged credibility, can assume a dominant role in it.  


A certain dreamer once articulated “a dream deeply rooted in the American dream,” instead of, like Kaepernick, in repudiation of it.  Martin Luther King dreamed: “let us not see to satisfy or thirst for freedom by drinking from the cup of bitterness . . . I have a dream that one day this nation will rise up and live out the true meaning of its creed.”  And unlike Kaepernick, who sneered at the National Anthem, King cited and quoted the patriotic song My Country ‘Tis of Thee -- “sweet land of liberty, of Thee I sing,” he said -- at his 1963 speech at the Lincoln memorial.  And that speech was before (such historical reminders are necessary these days) the passage of the Civil Rights Act of 1964.


Of Kaepernick, President Obama has said that “There is a long history of sports figures doing so.” But that is not true.  Over the last three weeks, there have been numerous attempts to compare Kapernick to Jackie Robinson, which is an affront to Robinson’s legacy which involved prolonged discipline, and character.  In addition, Robinson’s 1972 autobiography, published posthumously, has been quoted for his bitterness when he said “twenty years later, I cannot stand and sing the anthem.  I cannot salute the flag.”  But that part about the “twenty years later,” has been very much obscured, and readers who have glanced at the headlines and read most of the copy have been left with the impression that Robinson did that during his baseball career.  That, of course, would have been unthinkable in 1947, would have destroyed Brooklyn Dodger President Branch Rickey’s plan to break the color barrier in baseball, and would have eliminated Robinson from American history.  It is lucky for us that it was Jackie Robinson, not Colin Kaepernick, that Rickey selected.


Robinson, unlike Kaepernick, lived in a segregated society.  And, in what is the deeply personal side of his story, that is, the demonstration of his courage, Robinson accepted the challenge of Rickey who made it clear to him that in order to accomplish the breaking of the color barrier he would have to endure opposition and insults without retaliating.  There is no indication that multi-millionaire Kaepernick, an athletic celebrity from an early age, has ever had to endure any hardship in his life.


Nor can Kaepernick be compared in any way to Muhammed Ali who in his religious objection to being inducted into the Army lost the three best years of his athletic life and was convicted of a felony for refusing the military draft (later overturned on appeal). And Ali, unlike Kaepernick, represented only himself, not a team, and not a city.


Kaepernick’s actions have now spread not only to colleges but also to public high schools in several states.  In the 1969 Tinker v. Des Moines case, the Supreme Court said that students have some free-speech rights. But the highly public act, not merely speech, of refusing to acknowledge one’s country and its national anthem at the beginning of a public event is quite different, especially in degree, from the Supreme Court’s endorsement of the “silent protest” of wearing black arm bands in opposition to the Vietnam War in the Tinker case.  And it would be interesting to know what the content is of the American history and civics (if any) curricula at those public high schools. Is any patriotism or even any minimal respect for the country part of those tax-payer-funded courses? 


There is no basis to presume any sophistication about or knowledge of world affairs on the part of Colin Kaepernick (or of public high schools), so he may not know that there is no constitutional right to free speech in many countries of the world.  And he probably has not thought of how his actions may be perceived by Christians being not only murdered but also slaughtered by Isis in Syria and by the hundreds of thousands of victims of tribal wars and civil wars in Africa.


Television viewing of NFL games is substantially down this football season, and there is a growing consensus that Kaepernick’s unpopularity with football fans is a significant factor in that fall.  As for the National Football League itself, what allegiances it pledges are clear.  In 2014, the League fined Kaepernick $10,000 for appearing at a post-game press conference wearing headphones by a company other than Bose, the “official” headphones of the NFL. 


Thomas Ascik is a US attorney. @trascik


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Image Credit: Associated Press via Huffington Post