Americans are passionate about their flag and their anthem. Like any good American, I would argue that this is at least in small part to the unique beauty of American symbols. Yes, many nations are proud of their flag, but google the flags of the world and you’ll find a collection of tri-colored banners with little design to commend them. Stitched in the cauldron of war by the legendary Betsy Ross, our flag is endowed with meaning, and has remarkably managed to morph to reflect a changing of America while retaining its initial significance (thirteen stars have become 50, but the stripes remain an ode to our origins). The primary colors are stunning, and the stars on a field of blue reflect the peace of the night sky.
The anthem, similarly, is unique, as an oracle of war, a frozen moment in a young nation’s past where the future seemed less than certain. But is the closing line of the Star-Spangled Banner any less appropriate today? The national anthem’s proud overtones conceal a sense of strain—a fear that in tomorrow’s light, the banner may not still be waving. The song calls on our hearts to ensure we’re doing all we can to not give up the banner.
So it’s no surprise that Americans are every bit as passionate about their symbols as other nations, and maybe more. This passion has led to the typical legislation seen in so many countries criminalizing destruction or disrespect of a national symbol. By the 1980s, 48 states and the Federal Government had passed legislation outlawing destruction or disrespect for the flag.
This led the Supreme Court to take up the question once and for all. In Johnson v. Texas, the Court was called upon to decide whether a Texas man’s conviction for publicly burning an American flag could stand. Was the burning of the American flag purely expressive conduct? Or was it something less like speech, and more like an action that could be criminalized?
In a controversial 5-4 decision, the Court ruled that flag-burning is speech, that it cannot be criminalized, and that every American is entitled to anti-American views. Justice Brennan wrote, “The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word.” Where conduct is “sufficiently imbued with elements of communication,” it is protected by the First Amendment.
Quoting prior decisions of the Court, Brennan continued: “[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design.”
Chief Justice Rehnquist dissented, arguing that the flag “is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas,” but is due an almost “mystical reverence” that transcends political views. Calling the flag “the one visible manifestation of 200 years of nationhood, Rehnquist concluded, “The Court decides [today] that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be [required by law]. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.”
This decision came to my mind this weekend amid the curious events surrounding our national fall past-time. Colin Kaepernick’s “kneeling/sitting during the national anthem” protest has gone universal as the President furiously attempts to silence it. As NFL, MLB and NBA athletes join the movement, kneeling during the national anthem as a sign of protest against a nation that they say has failed, yet again, to live up to its creed of equality for all, the debate is reignited over whether an American should have the right to protest the most basic of American symbols.
The debate is messier than in Texas v. Johnson, however, because the government is not involved. Yes, the President is tweeting, but putting that aside for the moment, no government conduct is implicated. The First Amendment restrains only Congress in its text, although subsequent Supreme Court decisions have applied its restrictions against the entire Federal Government and later, against the states via the vague provisions of the Fourteenth Amendment. But here, the NFL could prohibit its players from kneeling during the anthem. Fans can stop watching their favorite team—as the President urges—and the First Amendment would not be violated.
But something feels wrong. Do we want a nation where a President wields his influence, not only over the Federal Government, but over popular culture as well? Should we have a country where the President tweets, the people follow, and the largest trade unions (the NFL) and most beloved companies (the teams) in America salute and jump on board? Should a public and prominent—if quiet—protest be silenced by the early morning edicts of a celebrity-in-chief?
This highlights an important point for our time. In an era where an otherwise-qualified quarterback can’t get a job because of his quiet demonstration, where Christians are boycotted for refusing to write messages against their will on cakes, where white supremacists are kicked off of Google and GoDaddy for expressing their views, where CEOs can be ousted from major companies because of their private political action, it is past time for us as a society to decide whether we really believe in Free Speech.
I say “Free Speech,” and not the First Amendment. Free Speech is bigger than the First Amendment. Free Speech is a social idea, not merely a political theory. It is the purest concept of tolerance—that I may vehemently disagree with what you say, but fight to the death for your right to say it. It is the attitude that brings local churches together to rebuild a mosque burned down by an arsonist, that finds a liberal school teacher encouraging a conservative student to publish his unpopular views in the school newspaper, that leads to intelligent conversations on twitter between opposing forces.
You may say that I’m a dreamer—but I’m not the only one.
As one of the greatest Supreme Court Justices of all time, Robert Jackson once wrote, “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.” West Virginia Board of Education v. Barnette. Our petty social officials should be taught this same lesson. There is nothing more American than the right to be un-American, nothing more patriotic than believing that patriotism can’t be required of our fellow citizens, but only earned. There is nothing more beautiful than enduring our own internal revulsion at a protest we abhor—because in the soil of such revulsion, the Freedom of Speech flourishes.
Nothing in this article suggests that I approve of the protests. I don’t. I am entitled to my views—just as the protesters are—that America is still the best nation on earth, an imperfect society that still strives to be equitable, and despite all its ills, the least rocked by racial conflict of any similarly-diverse nation on the globe. But my disagreement with the content of the protests does not force me to disagree with the right to protest. I believe in a society where a sports figure should speak his mind, because I’m terrified of a nation where I’m not permitted to speak mine, whether in the workplace or anywhere else.
I’m proud to stand for our national anthem precisely because you’re allowed to ignore it. I don’t kneel with Colin Kaepernick because I don’t see my nation the way he does, but I stand with him because I believe in a nation where everyone has the right to speak their mind as boldly and offensively as they’d like.