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.
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.”