It's not about the anthem.

Photographer: Harry How/Getty Images

Free-Speech Debate Misses Kaepernick's Point

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
Read More.
a | A

In a splendidly pedagogical scene in E. L. Doctorow’s 1975 novel "Ragtime," a radical named Ben Reitman is talking about the efforts of the authorities to keep the anarchist Emma Goldman from speaking. “We win every case,” he brags. This reference to successful litigation is too much for one of Ben’s fellow revolutionaries, who confronts him angrily. The argument, he says, is a distraction: “The issue has become Emma’s right to speak rather than what she has to say.” 

This story comes to mind when I think about the sudden fashion among professional athletes to kneel during the national anthem. The trend began of course with San Francisco 49ers quarterback Colin Kaepernick. Megan Rapinoe, star of the Seattle Reign soccer team, quickly followed his lead. On Thursday night, Brandon Marshall of the Denver Broncos similarly took a knee before the opening game of the National Football League season.

Kaepernick, who got the whole thing started, insists that he loves his country but objects to its treatment of people of color. His well-meant protest, alas, has met the moment that Doctorow described, for the conversation is no longer about the subject of Kaepernick’s protest, but the protest itself. And not even the conversation about the protest has gone particularly well. The Constitution keeps getting in the way.

Consider Rapinoe. When her team played the Washington Spirit Wednesday, the Spirit decided to avoid a confrontation by moving the national anthem earlier in the program, so that she will have no opportunity for a public kneel-down. This effort in turn has led to the charge that the Spirit was preventing her from exercising her constitutional rights.

But this is clearly wrong. Rapinoe’s right to protest does not require anyone else to cooperate in making the protest effective. Imagine a same-sex couple planning a wedding. They learn that a group supporting traditional marriage plans to demonstrate outside the church. Rather than have their day spoiled, the spouses-to-be move the ceremony to a different venue. Surely there is nothing objectionable in this. The alternative would be to hold that the right to protest includes the right to conscript others in order to garner as much attention as possible.

Now let’s get back to Kaepernick. Social activism seems rarer in football than in other professional sports. Some commentators, whether or not they agree with him, have therefore given Kaepernick high grades simply for speaking his mind. But notice that this is a process argument. It relates to the protest, not the cause.

Kaepernick insists that he loves his country. Critics, including some fellow players, contend that he is disrespecting the flag and what it stands for. Defenders, President Barack Obama among them, have insisted that he is merely exercising his constitutional rights. But this, like the football-players-never-speak-out argument, is a non sequitur.

In the first place, my right to speak freely does not mean that it is wrong to criticize me. Were I to write a column endorsing Donald Trump for president, I daresay that in the comments many Bloomberg readers would call down fire and brimstone on my head. They would not be denying me my constitutional rights, but exercising their own. Kaepernick’s right to ignore the national anthem confers upon him no magical shield of immunity from disagreement. Those who accuse him of a lack of respect are not denying his rights, and to cite his rights is no defense against their accusations.

Second, the fact that Kaepernick is exercising his constitutional right does not mean that his football team or the National Football League cannot punish him should either choose to do so. A constitutional right is a shield only against the government. Kaepernick is an employee of a private organization. We know that professional sports leagues will not hesitate to punish those who exercise their constitutional rights in ways that the head honchos think will hurt the bottom line. Donald Sterling, former owner of the Los Angeles Clippers, exercised his right to free speech and lost his team.

True, Sterling's message was ugly and Kaepernick's is in a good cause. But my point in both cases is that a private sports league can regulate speech as it chooses.

I am not suggesting that Kaepernick should face discipline for his protest, and I doubt that he will. On the other hand, this is a league that has fined a player for wearing purple cleats to raise awareness about domestic violence. And if public opinion should move against Kaepernick, and the always image-conscious NFL should wind up imposing punishment of some sort, the league might fairly be criticized on many grounds, but violation of his constitutional rights would not be among them.

Certainly one might argue that Kaepernick’s protest is nevertheless worthwhile. “If nothing else,” said Obama, “what he’s done is he’s generated more conversation around some topics that need to be talked about.” But it isn’t obvious that this is true. Compared to the precision with which John Carlos and Tommie Smith stated their demands at the 1968 Olympics in Mexico City, Kaepernick’s goal is muddled. It is far from clear what would satisfy him.

It’s wonderful that this young man wants to use his privileged position to call attention to the nation’s continuing scar of race. I’m just not sure it’s working. The jeers from the stands and the vehemence on the talk shows do not suggest any elevation of dialogue. Nor does it make sense to blame those who boo. The booers may be boors, but for all that Kaepernick’s intention might be to provoke conversation about race, he has instead provoked conversation about himself and his rights -- the very problem of which Doctorow warned. 

The principle of diminishing returns applies to protest as it does to other investments of resources. When the focus of the debate becomes not the issue but the protester, it is not unreasonable to consider a change in tactics.

  1. Note, please, that I am not saying the Spirit’s management was right to move the anthem. My point is only that doing so did not deprive Rapinoe of any constitutional or even moral right.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Christopher Flavelle at cflavelle@bloomberg.net