Colin Kaepernick and the First Amendment

Colin Kaepernick has been ruffling feathers lately with his refusal to stand during the National Anthem at NFL games. Let me put aside for a moment the question of whether his protest will have any affect; whether it is disrespectful to police and the military; or whether he even understands the problems which he claims to be protesting.

I’m going, instead, to take umbrage at how many people feel the need to defend Kaepernick using the argument, “He’s exercising his First Amendment rights.” First of all, that is a lame defense that you use when cannot otherwise justify his actions; second, it betrays a shallow and flippant understanding of the what the First Amendment actually means.

“He’s exercising his constitutional right to make a statement,” Obama said. (NBC Sports)

Colin Kaepernick was only exercising his First Amendment right. (Seacoast Online)

Thomas Peele: Kaepernick is First Amendment hero (Mercury News)

So let’s get this right out: Colin Kaepernick is indeed exercising his First Amendment right. As am I, and as are the thousands of voices supporting him and the thousands of voices criticizing him. There is no doubt about that. However, freedom of speech is not what is at issue here.

Let’s rewind a bit and see what the First Amendment actually says:

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.

From the literal interpretation, the text simply means that the Congress of the United States cannot outlaw any kind of speech, full stop. In the years and years of constitutional law, the supremacy of the US Constitution has been asserted over the states and other lower governments, as well as interpreted to apply to the executive branch of the government as well. The Supreme Court has also found that “free speech” also applies to print and the internet, as well as nonverbal gestures (such as flag-burning). Meanwhile, they have ruled that not all speech is protected, so libel and lewd communications are restricted (but not outlawed). So, more broadly, the free speech clause of the Constitution can be read as:

The government can’t punish you for communicating your opinions.

Note, however, that the Constitution says nothing at all about private citizens or organizations condemning, shaming, or (in the case of a business) firing people for what they say. There are some cases, a vast majority of Americans agree, which are truly despicable speech. For example, rhetoric from the Ku Klux Klan is protected under the First Amendment, yet you would struggle to find a soul who would commend the Klan for exercising their rights.

In fact, if the NFL wanted to fire Colin because his stance does not represent their values or the interests of their business, they would fully be in their rights to do so. And it would not be “censorship” because the government would not be involved. Moreover, Kaepernick is not some kind of free speech hero, because his free speech rights were never abridged nor threatened to be abridged.

So what I hear people saying, when they defend Kaepernick on the basis that he’s “exercising his right to free speech,” I hear one of two things:

  • “I don’t want to take a public moral stand because I’m afraid somebody’ll be offended, so I’ll make it seem like I’m not allowed to criticize because of free speech.”
  • “I agree with something a lot of people think is wrong, so I’m going to bully you into withholding your opinion by making you feel like you’re the one suppressing free speech.”

The Real Reason We’re Stuck Choosing Between Trump and Clinton

People think that Americans are becoming more politically polarized. It’s been blamed on Fox News and MSNBC, or the politics of identity, or whatever. Certainly, people have much more ability to choose their own news sources than 20 years ago and most people will choose sources that carry a point of view they already agree with. While perhaps this phenomenon is contributing to the problem, I propose that the problem, instead, is the systemic limitations of our present voting system. And now, because of the same system, we don’t have a viable third option–we have to choose between a rock and a hard place.

Our voting system is called first-past-the-post, where (in the extreme) the largest minority wins the election. Essentially, if a voter doesn’t think his candidate can win, he has to vote tactically for the least-bad candidate that he thinks can win, or risk ‘wasting’ his vote. This is an oversimplification, as we usually have (depending upon the state) a sequential primary election followed by a big general election. Some states have different rules for tempering this effect, but in the end this basic principle still holds.

In this year’s GOP presidential primary, there were 16 candidates. All got small vote shares (the “winner” in each of the early contests got less than 30% of the vote) and dropped out one by one until two broadly unpopular candidates and one poorly funded unknown were left. The two candidates that were unpopular nevertheless had the largest passionate minorities. One unpopular candidate had a more vociferous following than the other, and thus won the nomination. This is, of course, Donald Trump.

Hillary Clinton, on the other hand, was effectively the only Democrat candidate because all other candidates (except feisty underdog Bernie Sanders) assumed that they couldn’t win against her significant block of political and financial supporters, as well as the political strings she is able to pull. Any other reasonable candidate assumed that no matter how much support they drew, she would get just a little bit more. (We now know based on Bernie’s strong showing that Democrat voters were hungry for an alternative and a Tim Kaine or a Joe Biden could likely have defeated her.)

These situations could have been avoided with a different voting system. The Alternative Vote or a Condorcet method could introduce a third candidate or party which voters could safely identify as their second choice without wasting their vote on the first choice. This person would be a “compromise candidate”–somebody that Republicans could agree is better than the Democrat, and somebody that Democrats could agree is better than the Republican.

Unfortunately, it is highly unlikely such a system would ever rise in the U.S. Neither party, which dominate all of U.S. lawmaking, would like this method, as they have a vested interest in maintaining status quo.