Freedom of Suppression

“In the end it is worse to suppress dissent than to run the risk of heresy.”
– Judge Billings Learned Hand

Over this past weekend, NFL players, coaches, and teams continued the highly-controversial protests sparked last season by Colin Kaepernick.[1] Throughout last season, Kaepernick refused to stand during the playing of the National Anthem in protest of the injustices against racial minorities in the U.S.[2] A year later and Kaepernick is no longer playing on a NFL roster.[3] One could expect that the responses to Kaepernick’s protests, specifically his questionable unemployment, would dissuade current players from speaking up and joining in these protests. For the most part, this was not a topic of conversation during the first two weeks of the NFL season. That all changed, however, when President Trump addressed the topic in a speech on September 22, 2017.

In his speech, President Trump stated, “[w]ouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b*tch off the field right now. Out. He’s fired!’. . . .”[4] That has yet to happen, and at this point, with all eyes on the NFL, it’d be a surprise if it did. On the contrary, this weekend, in response to the President’s remarks, an overwhelming number of players, coaches, and even some owners kneeled before and during the National Anthem.[5] Some other stood with interlocked arms, instead of kneeling. But their message was clear.[6] In what seemed to be a symbol of solidarity, and maybe a direct response to President Trump’s speech, the NFL collectively stood up against suppressing our freedom of expression.

Regardless of your stance on the protests, all sides should agree with the values and rights promoted by the U.S. Constitution. One of those values is our freedom of expression. Any implication of those rights being eroded is a path we do not wish to travel as a society. Colin Kaepernick sparked a necessary conversation about many social issues in America. It is our duty as citizens, like the players and coaches in the NFL, to continue this conversation and stand up against all those that wish to silence it and ultimately ignore the issues.

For a more in depth analysis on what is at the core of these protests, check out:

Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 J. Marshall L. Rev. 439 (2004).

For more discussion on the First Amendment, see:

Matthew Slaughter, First Amendment Right to Record Police: When Clearly Established is Not Clear Enough, 49 J. Marshall L. Rev. 101 (2015); and Donald L. Beschle, The First Amendment in the Seventh Circuit: 2002, 36 J. Marshall L. Rev. 807 (2003).

For a discussion on censorship, read:

Brandon K. Lemley, Effectuating Censorship: Civic Republicanism and the Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002).

[1] Des Bieler et al., ‘Trump Can’t Divide This’: Cowboys, Along With Owner Jerry Jones, Kneel Before Anthem in Arizona, Washington Post (Sept. 26, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/09/25/cowboys-players-take-a-knee-with-owner-jerry-jones-before-standing-for-anthem/?utm_term=.da19fe6cb5d8.

[2] Steve Wyche, Colin Kaepernick Explains Why He Sat During National Anthem, NFL Network (Aug. 27, 2016), http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.

[3] Mike Sando, NFL Execs, Coaches on Why Colin Kaepernick Remains Unsigned, ESPN (Aug. 23, 2017), http://www.espn.com/nfl/story/_/id/20422146/nfl-execs-coaches-offer-insights-why-colin-kaepernick-remains-unsigned.

[4] Aric Jenkins, Read President Trump’s NFL Speech on National Anthem Protests, TIME (Sept. 23, 2017), http://time.com/4954684/donald-trump-nfl-speech-anthem-protests/.

[5] Bieler, supra note 1.

[6] Id.