The Kneeling Ban Isn't a Legal Affront to the First Amendment. It's a Moral One.

Even if it’s not technically illegal, the NFL’s kneeling ban is just more authoritarian nonsense.

Maybe we didn’t think that much about it when we were kids. Still, some of us may have grown up retroactively embarrassed — and a little creeped out — that we spent so much of our primary educations saluting and pledging allegiance to gods and flags.

Word has likely reached you by now that Donald Trump, Mike Pence and the rest of their conservative administration have been acting like chastised children during the recent wave of NFL “kneeling protests.” On one occasion when a brave soul planted a knee instead of standing at attention for the singing of the national anthem, Mike Pence pointedly left the stadium in disgust.

As the story goes, America’s founders were a handful of folks who decided to act against the broad reach of authoritarianism. They destroyed property and eventually went to war. More than two centuries later, American patriots — actual patriots, not just the folks who run their mouth about patriotism when they’re running for election — are staging protests of their own.

How? By kneeling, quietly, during America’s national anthem, before a game of catch.

As far as lawful recalcitrance goes, this is as tame as it gets. And yet, the “snowflakes” running the federal government right now have gone out of their way to express their displeasure at these peaceful demonstrations. The result is one of the most obvious lurches yet toward American authoritarianism. It’s already infected our government from top to bottom. Now it’s coming for entertainment.

Drowning out the Message

By now, we all know how this goes. When the authority in question has something unflattering come to light, they attack the messenger and the “vehicle” for their message, instead of confronting the upsetting truth that’s just been made public.

Do they even know what Colin Kaepernick or his cohorts were kneeling for in the first place? We might have forgotten — the uproar has consumed these men and their original message almost totally. That, of course, has been by design.

For the record, Kaepernick has been explicit about his intentions: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” It’s quite unlikely Pence’s public display of childishness at that game in Indianapolis has dulled his spirit or removed the urgency of this message, however.

But that hasn’t stopped Pence, Trump and an assortment of other representatives of the American right wing from coming out in force against these completely harmless, totally justified, entirely legal, morally defensible and, frankly, long-overdue player protests.

And beyond his peaceful protests, Kaepernick donated $1 million from his 2016-2017 salary to various community-based organizations. He is a serious man — and he’s inspired a very serious moment in the development of this country.

Is the Kneeling Ban ‘Legal?’ Should It Matter?

This is America, so we’re drawing up rules to govern the messenger and his message, rather than to address what he’s criticizing in the first place.

To that end, the NFL has folded like a cheap tent in response to pressure from the White House and elsewhere and come up with a response to kneelers and sitters. According to the NFL’s new guidelines, they intend to punish teams and players for nonconforming — or, as they put it, for not showing “respect:”

“The commissioner will impose appropriate discipline on league personnel who do not stand and show respect for the flag and the anthem.”

What are their options instead? That’s easy. Players can stay in their locker room instead of standing for the anthem. In other words, out of sight and out of mind.

One conclusion we can draw about this is that the NFL is not breaking the law — nor taxing the limits of First Amendment protections — because it is a “private employer.” But according to experts, if you really need to ask, this is an obvious attack on players’ constitutional rights.

But you know what? Who even cares about that? Progressive minds have always understood corporate interests seem to trump human interests every time in this country, but this is beyond the pale. In what universe should we be okay with “private bylaws” superseding Constitutional rights?

Suppose we didn’t even have a First Amendment. We wouldn’t have a legal precedent for why the NFL’s kneeling ban is a stupid and oppressive idea, but we’d still have a moral one. These athletes are human beings and American citizens before they’re performers — and they’re using the soapbox life has given them to bring their message to the public.

It’s a message we’re seeing at every other level of American society: America can indeed be a vicious place that practices cruelty here and abroad on an institutional level. What makes the NFL think it’s above the law or above reproach? What gives them the clout and confidence to clamp down on free thought, free deed and free speech in a country that calls itself exceptional? What third-world tinpot dictator is Trump channeling when he demands unflinching loyalty from those around him — and now privately employed entertainers?

“Get that son of a bitch off the field right now. Out! He’s fired.” Trump said this of players who kneel for the anthem, while a stadium of his most committed fans cheered him on. And now, rather than seeing his outrage for what it is — an agent of authoritarianism running scared — the NFL has given him everything he’s asked for and done real damage to this country in the process.

The Blowback Is Coming

Some of the most recent news indicates there might be some pushback on the horizon for the NFL. Recently, the NFL Players Association — a union — publicly announced nobody had told them about the changes to the NFL’s anthem policies, and they will be looking into whether, and how, the new guidelines conflict with their contracts.

This recent controversy and others like it have actually sparked a conversation around whether the NFL should even run the way it does anymore, from a legal standpoint. With the serious issues the NFL has had with player injuries and the freedoms of athletes, complainants say the hostile and brutal work environment of being a player beholden to the NFL is a threat to very basic human rights, and an abuse against players.

Experts have floated the idea of placing the NFL under the oversight of OSHA and other similar entities that would be responsible for compliance in any regular workplace. This would ensure that the NFL is following employment laws like the General Duty Clause, which protects employees by putting the responsibility on the employer to create a hazard-free workplace.

With new standards being introduced every day to combat workplace abuses, we may see the whole system rebooted, and perhaps players will, at some point, have a full right to protest. Moves like the kneeling ban are pushing us in the opposite direction of progress, but hopefully with enough continued conversation on this issue, we will finally turn a new leaf with the way we oversee American football, and even other workplaces with similarly murky legal waters.

Whatever happens from here, it’s become clear Kaepernick’s original protest stands as one of the historical events that changed America and our conversation around these issues. Watch very closely how people react to this “debate” as it unspools in front of us. You’re going to learn a lot about people you thought you knew — and depending on how it plays out, receive either a gloomy portent or a ray of hope for the direction in which this country is headed.

Comments
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wonderwall15
wonderwall15

The hilarity that ensued in the aftermath of the Eagles' appearance replacement event is enough for me for now that while the NFL can get away with stopping people from kneeling (is it really that disrespectful? I thought only liberals are snowflakes?) Trump has struggled with God bless America in a patriotic event he organized, with seemingly fake Eagles fans. Karma knows when and where exactly to hit

isobel_j
isobel_j

Decision isn't illegal and you opened with it. For some people this is all they need. As long as it doesn't trample on anyone's rights, I guess we can all let the NFL have their say with what they do with their company.

FelixCulpa
FelixCulpa

For f@%ks sake, it matters as much what the NFL says about Trump as vice versa. Kaepernick kneeling is not "one of the 10 historical events that changed America". He's not Rosa Parks, he's a football qb with a conscience. I respect the fact that he's not entirely money motivated, but that doesn't make him Jesus. I'd also like to add that it's not a debate. Each player has the opportunity to decide which they value more, and to act on that decision. If they prefer the message to the money they're welcome to quit.

Pat Greer
Pat Greer

Editor

This decision made me sad.

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