Friday Night Freedom of Expression

Last week, Colin Kaepernick, the quarterback for the San Francisco 49ers, landed in the national spotlight for refusing to stand during the pre-game playing of the national anthem. Talking to reporters after the game, Kaepernick explained his decision by stating that he could not take pride in a country that “oppresses black people and people of color.” Almost immediately, Kaepernick’s action elicited counterprotests, including the burning of his jersey by some angry fans.

Amid the fray, a statement issued by the team captured a very important point: “The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”

This response gets it right—one of the liberties the flag represents is the very freedom of expression that Kaepernick exercised. While disrespecting national symbols like the flag or the national anthem offends many Americans, defending a person’s right to do so truly honors the freedoms that these symbols represent.

If a person wants to protest the actions of the government, showing contempt for the country’s symbols is a powerful way to get the message across. Kaepernick is certainly not the first American to refuse to recognize a national symbol. In an 1852 speech Frederick Douglass asked, “What, to the American slave, is your Fourth of July?” answering that it represented “more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.” Douglass’ remarks held weight, both at the time and today, because he publicly argued that injustice gave good reason for a national symbol to be disrespected.

Defending the freedom to express oneself by disrespecting a national symbol is not a question of right or left. Even Justice Antonin Scalia, whom few would claim had much sympathy for antipatriotic protestors, joined with famously liberal Justice William Brennan in striking down a flag-burning ban in Texas v. Johnson (1989). While Scalia personally found flag burning deeply offensive, he understood that it was clearly an expressive act protected by the First Amendment.

While not on par with flag burning, Kaepernick’s action (or, more precisely, inaction) ultimately deserves the same protection extended to other expressions of disrespect toward a national symbol. After all, the freedom of expression is not reserved for the uncontroversial or the inoffensive.

Some of the criticism and support in response to Kaepernick’s decision has been thoughtful and considered—but whether it defends Kaepernick’s argument, debates the value of patriotism, or questions Kaepernick’s premise for refusing to stand, such dialogue is only possible when free speech is protected.

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