Vail Law: The right to take a knee is granted by the First Amendment
October 3, 2017
My boys played football. When a teammate or opponent was injured, they took a knee. In the NFL today, in solidarity for our injured democracy, the players take a knee. That's what football players do.
Now, you don't have to agree with them. You have every right to disagree. You have the right to voice your disappointment in the players, if that's what you want to do. You have the right to boycott the games, to burn your favorite jersey, to pen letters to the editor, to protest peaceably at your nearest NFL stadium. You have the same right as the players to express yourself. But what you don't have the right to do is to shut them up.
President Donald Trump got it wrong. Then Treasury Secretary Steven Mnuchin made it worse.
What the president said is that any player who takes a knee during the national anthem should be fired, referring to the protesting players as sons of bitches (his words, not mine). Then Mnuchin weighed in (what in God's name is the Secretary of the Treasury doing weighing on football?) and said they should protest "on their own time."
“What patriots have fought and died for from Lexington and Concord forward is the American creed, the virtues of democratic self-rule, the freedom of the people to be, do, think and say what free men and women have always aspired to. What they have spilled their blood for is the pursuit of liberty. True patriots indulge divergent points of view and peaceful protest in the name of greater justice.”
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What could be more conservative than honoring the First Amendment? The First Amendment — which, by the way, is "first" for good reason — assures Americans certain fundamental rights.
Esteemed former Supreme Court Justice William O. Douglas once observed, "Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."
And just in case you're tempted to say, "Hey, taking a knee isn't speech!" Oops, it is. Actions (symbolic speech) — especially in protest — have long ago been held to be the indistinguishable equivalent of "speech" and may be afforded all the same protections. Symbolic speech (for example, burning the flag in protest) has been held and "re-held" by decisions of the U.S. Supreme Court to be a form of protected speech: Texas v. Johnson (1989); United States v. Eichman (1990).
Never mind the Ten Commandments
The First Amendment provides in whole that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." That's it, short and pithy.
If you're going to buy into American conservatism (which may be concisely defined as a political and social philosophy that promotes retaining traditional social institutions in the context of culture and civilization) and you don't embrace the First Amendment, then it's like claiming you're a Jew or Christian but never mind the Ten Commandments.
Sure, there are limits on free speech. In Schenck v. United States, a 1919 espionage case, Supreme Court Justice Oliver Wendell Holmes Jr. famously penned, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." In some government positions, your lips must be zipped on government time.
Silently taking a knee ain't either of those. For Trump to suggest that NFL players should be fired or Mnuchin to suggest they protest on their own time is to fundamentally misconstrue the First Amendment.
Sleight of Hand
Instead of denouncing neo-Nazis, the Klan, the alt right or the hatred in Charlottesville — to which the president was a lukewarm Johnny Come Lately — and instead of focusing like a laser on North Korea, Florida, Texas, Puerto Rico and putting to bed the cloud of Russian meddling, what the president has done instead is to engage in some Penn and Teller-like sleight of hand, distracting us with this tempest in a teapot instead of the incendiary possibilities of Moscow and Pyongyang.
What patriots have fought and died for from Lexington and Concord forward is the American creed, the virtues of democratic self-rule, the freedom of the people to be, do, think and say what free men and women have always aspired to. What they have spilled their blood for is the pursuit of liberty. True patriots indulge divergent points of view and peaceful protest in the name of greater justice.
No, Mr. President
The president is misinformed and off course when he tries to quell free speech. What the knee is about is not the national anthem or even disrespect. What it is about is a call for broader respect to be meted out to all, as we are all God's children and the "self-evident truth" that "all men are created equal," according to the second paragraph of the U.S. Declaration of Independence.
Colin Kaepernick started this whole thing. Kaepernick kneeled during the national anthem last season to protest police brutality, a gesture later taken up by other players. When Trump said athletes like her kid are "son(s) of a bitch(es)," Teresa Kapernick, Colin's mom, wasted no words: "Guess that makes me a proud bitch!"
When Trump said what he said, fewer than 10 players in the NFL were taking a knee. Last week it was more than 250. Can or should the president attempt to tamp down free speech? No, Mr. President. Just no.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.