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Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

This Land Is Your Land
Words and Music by Woody Guthrie

This land is your land, this land is my land
From California to the New York island,
From the redwood forest to the Gulf Stream waters;
This land was made for you and me.

As I was walking that ribbon of highway
I saw above me that endless skyway;
I saw below me that golden valley;
This land was made for you and me.

I've roamed and rambled and I followed my footsteps
To the sparkling sands of her diamond deserts;
And all around me a voice was sounding;
This land was made for you and me.

When the sun came shining, and I was strolling,
And the wheat fields waving and the dust clouds rolling,
As the fog was lifting a voice was chanting:
This land was made for you and me.

As I went walking I saw a sign there,
And on the sign it said "No Trespassing."
But on the other side it didn't say nothing.
That side was made for you and me.

In the shadow of the steeple I saw my people,
By the relief office I seen my people;
As they stood there hungry, I stood there asking
Is this land made for you and me?

Nobody living can ever stop me,
As I go walking that freedom highway;
Nobody living can ever make me turn back
This land was made for you and me.

Posted by: AnonProf | Sep 18, 2020 11:06:17 AM

If you eliminate the prayer in public school, we'll agree to eliminate the anthem in sporting events.

But so long as you need the power of God to learn the laws of nature in science, then we need the power of patriotism to outscore our opponents on the field.

Posted by: Running down the field | Sep 14, 2020 7:12:38 PM

@9P

You are probably correct, though I think the right would frame it more that the left had been successful in taking away the national anthem (which may be what you're saying); though, I think on the left you'll still hear the accusation that "they're" trying to stifle the protests by removing the anthem.

So, taking away the anthem may be one of those actions that is meant well but ends up offending both sides and pleasing nobody.

Posted by: thegreatdisappointment | Sep 14, 2020 3:54:07 PM

Jeez, Howard. You've deleted another perfectly reasonable, perfectly acceptable, perfectly polite post. It's not okay to call out the misbehavior of one of your most prolific commenters? Pitiful. You should be ashamed.

Posted by: George Thorogood | Sep 14, 2020 3:48:14 PM

"at which point those on the left will argue that people are trying to take away their protest"

The opposite is more likely, isn't it? The right will argue that the protests during the anthem WERE about the anthem after all, and that the left is waging a war against the anthem/against America/against American pride.

Posted by: 9P | Sep 14, 2020 3:45:08 PM

@anon

Thank you. Now, to answer your questions:

1. The problem with perpetual protest is that nobody has any reason to pay any attention to them. It's like people protesting for world peace. If you're asking me for something I can't give you, if makes no sense for me to try and accommodate you, because what you want is impossible. Which is the opposite of what a protest is supposed to do. So when you say "End police violence" I have no idea what you actually want, and I would maintain that some police violence is good (i.e. when a police officer uses violence against a mass shooter, for instance). So, not only don't I know exactly what you want, but if I take you at your black letter protest slogan, we have inimical positions with no way to compromise. Either way, the protest is ineffective and, in its vagueness, exists either to create ends that actually are bad or intends to act only as a divisive force. Both are bad and unworthy of support.

2. I'm not so sure that the protest actually has been recast more than its been exposed as being about something else. As we've seen in point 1, the vagueness of the protest's stated goal is either a) actually a bad thing and, thus, worthy of being opposed; or b) intended to be a source of perpetual division, which also is worthy of being opposed. All that to say, you haven't shown that the protest has actually been *redefined* more than it's simply been *further defined*.

3. I'm not entirely sure how you reached the conclusion "people should therefore not protest police violence by doing anything that relates to the national anthem" from what I've written, because to reach that conclusion I would have had to say that any protest that protests the national anthem is unable to stay on message. Which I never said that. I said *this* protest has been unable to stay on message--though, as we've seen, it may simply be that opposition has revealed the protest's *actual* message.

Posted by: thegreatdisappointment | Sep 14, 2020 2:50:48 PM

@thegreatdisappointment -

I didn't intentionally misrepresent what you wrote, but I may have misunderstood you. If so, I apologize; that's why I asked for you to clarify. Can you clarify? Why did you write: "The other problem with the protest is there's no obtainable goal. 'End police violence'. Ok. What's the metric for when people will stop kneeling at the anthem? In other words, the protest is perpetual." Why does this matter? What's wrong with protest that is effectively perpetual because the goal in question will be difficult to achieve? If there's nothing wrong with such protest, why did you write the above?

Additionally, you wrote: "In your second paragraph, you mentioned police violence once, and the national anthem twice. The protest is off message. Even in your second paragraph, you're actually arguing about the anthem. So, assuming your point is actually police violence, you're still arguing the anthem and so you are also off-message."

I wasn't protesting in my last post. Me talking about the anthem (in *direct* response to your post) is not therefore an example of protests against police violence being off message.

I'll repeat what I said again (now for a third time), though, because you didn't respond to it and it's applicable to what you wrote.

Let me try to follow this. You're claiming that a good protest must be able to stay on message. This protest is (presumably) not staying on message because a *different* population of people (a group antagonistic to the message) has vigorously attempted to recast the protest. Thus, national anthem protests are not good protests -- and, I guess, people should therefore not protest police violence by doing anything that relates to the national anthem?

Posted by: anon | Sep 14, 2020 2:33:50 PM

"Howard says that he enjoys the anthem as a ritual--not as any sort of expression of unity among Americans."

I am not sure Howard necessarily says that. The rest of that paragraph does suggest that, but I would like to hear what he actually thinks about that.

I was not born in the United States. Where I am from, the national anthem before a soccer game is also a secular ritual, but which is tied to national unity and the celebration of a common purpose for the future. We also have a troubled history when it comes to race and ethnicity. But people do not see the anthem as the proper venue to protest about past and present inequities. There are many other effective and less divisive ways to do that. I've been part of those protests myself.

Is there another country where the national anthem is used as a prop to protest? In Spain, a few people in Catalonia and the Vasque country will sometimes whistle while the Spanish national anthem plays. But these are fringe separatists. Here it seems to be more mainstream.

Posted by: theRealAnonymous | Sep 14, 2020 2:17:12 PM

I think Howard has inadvertently taken us to the heart of the matter.

Let me preface this by saying, as far as the protest go, I don't actually care. I feel no great passion one way or another. I find them interesting in an academic sense, and this allows me a bit of distance because I simply couldn't care less. What does interest me, though, is in the causes behind the animosity that has grown up around the protest.

Anyway...

First, Howard says he believes in the players' absolute right to protest "the ritual" (i.e. the anthem). This seems to suggest that Howard, on at least a subconscious level, sees the anthem as the thing being protested.

Second, Howard says that he enjoys the anthem as a ritual--not as any sort of expression of unity among Americans. And this, I think, leads to the actual crux of the debate over the protest.

For people who support the protest, the anthem largely doesn't mean anything to them. It's just a song or a ritual or something you've got to get through before the game starts. For the people against the protest, the anthem actually *does* mean something. It's an expression of unity or pride or hope in the country.

This is not to say those who support the protest are unpatriotic or hate America, just that the anthem means nothing to them on any sort of national or emotional level. It's just a song. And they're having a difficult time understanding that to an entirely different section, their protesting the anthem (which we've established that the distinction between the anthem and police violence in the minds of those who support the protest is, at best, not as clear cut as they try to make it) feels like a direct attack on the country's unity.

The question, really, at the bottom of the anthem protest is: What national institution don't you want to tear down? If we can't even affirm through a song that we remain united, what is left?

And those who support the protest haven't found a good answer to those questions yet.

Posted by: thegreatdisappointment | Sep 14, 2020 2:06:28 PM

I like secular rituals such as the anthem (while also recognizing the absolute right of someone to protest that ritual through the ritual). My wife is from Baltimore, so I have grown to enjoy shouting "O's" at the appropriate spot. The anthem has been played at every game I have attended or participated in, which I would label as "part of" the event. So maybe I am just accepting what I know.

Posted by: Howard Wasserman | Sep 14, 2020 1:47:59 PM

Honest question, Howard:

Why do you "enjoy the anthem as a part of the game"?

I'm having trouble seeing the "enjoy" part *or* the "part of the game" part.

Posted by: George Thorogood | Sep 14, 2020 12:42:46 PM

@ anon,

Thank you for admitting that you cannot provide a direct quotation of me saying the protests were not legitimate. Honestly, you should have just said that and I would be more inclined to concern myself with what you wrote. However, since you distorted what I said right out of the gate and then could not bring yourself to say, "You know what, I did misrepresent what you wrote", I don't see any reason continuing the conversation.

If you see fit to say, "You know what, I did misrepresent what you wrote" I'll be willing to continue the discussion with you.

Posted by: thegreatdisappointment | Sep 14, 2020 12:22:54 PM

I think that @thegreatdisappointment's comments ultimately circle back to a requirement an effective mode of protest should meet - protesting should be costly for those protesting.

When folks march on the street, it is costly for them. These protesters could be doing something else (more rewarding) and are exposing themselves to potential violence. Others are not likely to co-opt that form of protest. And when their demand is met, they protesters will have the incentive to stop protesting.

Kneeling while the anthem is playing is now the cheapest form of protest, more of a publicity stunt that anything else. So it's being co-opted, commercialized and thus, has lost its value. The sad part is that not only the act of kneeling is being devalued, but also the anthem itself.

Posted by: theRealAnonymous | Sep 14, 2020 11:47:12 AM

@therealdisappointment:

You wrote: "The other problem with the protest is there's no obtainable goal. 'End police violence'. Ok. What's the metric for when people will stop kneeling at the anthem? In other words, the protest is perpetual.

I'll let you explain: why does this matter? What's wrong with protest that is effectively perpetual because the goal in question will be difficult to achieve? If there's nothing wrong with such protest, why did you write the above?

"In your second paragraph, you mentioned police violence once, and the national anthem twice. The protest is off message. Even in your second paragraph, you're actually arguing about the anthem. So, assuming your point is actually police violence, you're still arguing the anthem and so you are also off-message."

I wasn't protesting in my last post. Me talking about the anthem (in *direct* response to your post) is not therefore an example of protests against police violence being off message.

I'll repeat what I said again, though, because you didn't respond to it and it's applicable to what you wrote.

Let me try to follow this. You're claiming that a good protest must be able to stay on message. This protest is (presumably) not staying on message because a *different* population of people (a group antagonistic to the message) has vigorously attempted to recast the protest. Thus, national anthem protests are not good protests -- and, I guess, people should therefore not protest police violence by doing anything that relates to the national anthem?

Posted by: anon | Sep 14, 2020 11:44:57 AM

@ anon:

Please directly quote where I said the protest is not legitimate. I'll save you a little time. Since I never wrote that the protest was not legitimate, you won't be able to directly quote that.

In your second paragraph, you mentioned police violence once, and the national anthem twice. The protest is off message. Even in your second paragraph, you're actually arguing about the anthem. So, assuming your point is actually police violence, you're still arguing the anthem and so you are also off-message.

Posted by: thegreatdisappointment | Sep 14, 2020 11:32:07 AM

"What's the metric for when people will stop kneeling at the anthem?"

That's an odd basis on which to evaluate the legitimacy of protest. Are you seriously suggesting that a problem that is difficult to resolve is, by virtue of this difficulty, a problem that shouldn't be protested?

"A good protest must be able to stay on message"

Let me try to follow this. You're claiming that a good protest must be able to stay on message. This protest is (presumably) not staying on message because a *different* population of people (a group antagonistic to the message) has vigorously attempted to recast the protest. Thus, national anthem protests are not good protests -- and, I guess, people should therefore not protest police violence by doing anything that relates to the national anthem?

Posted by: anon | Sep 14, 2020 11:11:27 AM

The loss of civic virtue is what ultimately destroyed the Roman empire. Christianity was the culprit then, at least according to Gibbon. It's difficult not to see similarities between that and those who now claim that our national symbols are divisive.

Posted by: theRealAnonymous | Sep 14, 2020 10:33:59 AM

The national anthem is so divisive we're not going to play it anymore.

Let's see if we can game this out. We stop playing the anthem at sporting events, at which point those on the left will argue that people are trying to take away their protest. I would imagine about that time we'll see another post on here about how doing away with the national anthem was really a move by white supremacists to take away a form of peaceful protest for BIPOCs.

At that point, *anywhere* the national anthem is played, it will become the "in" thing to protest by kneeling, with part of the protest probably being to reinstate the national anthem at sporting events. At which point we'll reinstate the national anthem at sporting events or just stop playing it altogether because the song itself has become so divisive.

Which leads us to the nonsensical nature of the original protest. A good protest must be able to stay on message, and nobody talks about police violence with these protests, do they? The protest has actually become *about* the anthem and caused the *anthem* to be divisive--so divisive in fact that now we have two national anthems--one for whites and one for blacks--that the NFL played.

The other problem with the protest is there's no obtainable goal. "End police violence". Ok. What's the metric for when people will stop kneeling at the anthem? In other words, the protest is perpetual.

Posted by: thegreatdisappointment | Sep 14, 2020 10:26:53 AM

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