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Tuesday, August 30, 2016

Colin Kaepernick

I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.

As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)

Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.

Posted by Howard Wasserman on August 30, 2016 at 10:01 AM in First Amendment, Howard Wasserman | Permalink

Comments

On the other hand, this also somewhat begs the question of why we have the Star Spangled Banner prior to mere sporting events in the first place — it's a North American thing. "God Save the Queen" does not play before Premier League matches... and similarly for the Bundesliga, Premier Liga, Serie A, other sports, etc.

Posted by: C.E. Petit | Aug 30, 2016 11:30:11 AM

I support his right to do this. I can't, for the life of me, figure out why people even care. Though, I do chuckle a bit at the thought that he is expressing genuine outrage. It's a business decision. Kap has to re-build his brand, and controversy is the easiest way to do it. In the short-term, it's working beautifully. He's had two or three solid days of constant discussion. The long-term, though, is a different story, because what he's protesting is so vague (justice for those who are oppressed) there's likely no way we'll ever reach a point where we say, "Awesome. Nobody is oppressed and justice is fairly distributed."

Posted by: YesterdayIKilledAMammoth | Aug 30, 2016 12:12:11 PM

C.E., the playing of the national anthem before sporting events started during WW II. It also was played at the movies although that ended with the war's end. I agree that it could easily be limited to the opening game of the World Series and the Super Bowl if we wanted to make it something special.

Posted by: PaulB | Aug 30, 2016 12:21:37 PM

I really doubt that Kaepernick is protesting to "re-build his brand." Given the conservative nature of NFL owners/managers--and I mean both politically conservative and small-c conservative--and Kap's somewhat surprising descent into fringe-player status, his actions are much more likely to lead to a ticket out of the league than to some sort of resurgence.

Posted by: anon | Aug 30, 2016 12:49:00 PM

Carlos Delgado is the player that comes to mind given my fan sentiments.

He did it before coming to the NY Mets and I wonder if it would have been more complicated in NYC. At the time, he was with the Toronto Blue Jays. As a conciliatory gesture, he did stand for "God Bless America" when he came to NY.

It was a response to the Iraq War and the Navy-Vieques protests.

Posted by: Joe | Aug 30, 2016 1:54:37 PM

Well, to be fair, I didn't say he was rebuilding his brand for the NFL. Although, there are several athletes who used controversy to bill themselves. Ali famously said half the people who came to his fights came to watch him lose--but they still paid for tickets.

Perhaps, this is a ploy by Kap to stay in the league. If the 49ers let him go, there will be an outcry that this is a reason why, and Kap in all likelihood will glide into another gig. Or, perhaps Kap is playing the long game and game-planning for life after football (he is, after all, a fringe player now).

In any event, it's a bit hard to believe this sudden righteous fury is totally genuine an altruistic. Is he upset at events? Probably. Would he actually let it come between him and a paycheck? Doubtful. The political leanings of the owners, as I see it, is only marginally important. Their goal is a bottom line. You don't get a good bottom line by attacking a popular player. Kap had fallen from the pedestal of popular player.

As of right now, though, that's changed.

Posted by: YesterdayIKilledAMammoth | Aug 30, 2016 4:17:12 PM

The Supreme Court has definitely not rejected any criticism of Kaepernick's protest, or arguments to similar effect, unless you're aware of some criticism that says what Kaepernick is doing should be jailable. In fact, Justice Scalia's public comments on Texas v. Johnson, Justice Kennedy's concurring opinion, and even Brennan's majority opinion, suggest that the Johnson majority, especially Scalia, would be fairly sympathetic to those criticisms. The criticisms of Kaepernick suggest that Kaepernick ought to, as a matter of patriotism or respect to the military, regulate his own speech or expressive conduct in a certain way, a claim which is no different, in form at least, from a claim that Trump shouldn't say offensive things about deceased veterans' parents and should apologize if he does. Obviously the doctrine under which that speech is highly protected is not a "rejection" of the claim that Trump shouldn't denigrate deceased veterans' parents. What you say is like saying that the Supreme Court has rejected claims that racist speech and thought is morally reprehensible because it has held that they are protected. That would be an absurd category error (and in fact, much of the Court's doctrine on race would be nonsensical if the Court didn't itself hold the view that racism is morally reprehensible).

Posted by: Asher Steinberg | Aug 31, 2016 1:46:06 AM

Asher nailed it. Not all odious speech can be criminally punished, but it can and should be criticized as such. To use a slightly more apposite analogy, I assume you wouldn't be faulting criticism of Kaepernick if he'd instead chosen to engage in the protected activity of picketing military funerals as an insane way of protesting homosexuality (see Snyder v. Phelps), which makes about as much sense as refusing to honor the flag/national anthem to protest police brutality.

Posted by: Hash | Aug 31, 2016 1:17:40 PM

I support his right to do this, without equivocation. I

Has someone suggested he be prosecuted? If not, what sort of 'right' do you fancy he's asserting? One contra any discipline his employer or the league might employ? Wouldn't such a right be indicated in the league's by-laws or in his employment contract?

His gesture is in poor taste.


it's a North American thing. "God Save the Queen" does not play before Premier League matches...

Well, bully for you.


Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country

It is beyond laughable that a law professor cannot distinguish intelligently between Trump's thesis and this football player's, or prefers to pretend he cannot so distinguish.

Posted by: Art Deco | Sep 1, 2016 12:04:21 AM

What's beyond pathetic is a guy that his whole resented the professors at a university where he worked in a pink collar job, spending his golden years being a gadfly on professors' blogs. Must be one of those love to hate things.

Posted by: Anon | Sep 1, 2016 11:22:45 AM

What's beyond pathetic is a guy that his whole resented the professors at a university where he worked in a pink collar job, spending his golden years being a gadfly on professors' blogs. Must be one of those love to hate things.

And you following me around from blog to blog treating everyone to a fanciful precis of my biography, motives, and daily schedule is something other than poisonous?

Posted by: Art Deco | Sep 3, 2016 1:43:22 PM

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