The Tully Center for Free Speech

Free Speech Zone

“Sitting Down While Standing Up” on The Huffington Post

By Roy Gutterman, September 2, 2016

This article appeared on The Huffington Post on Sept. 2, 2016. 

When San Francisco 49ers quarterback Colin Kaepernick refused to stand during the pre-game rendition of the national anthem, he opened himself up to a wave of criticism. Kaepernick’s protest, and his vow to continue sitting during the national anthem is his personal protest aimed at drawing attention to abuses suffered by African-Americans and other minorities.

Just as his protest drew ire in some circles, including reportedly officials at the NFL headquarters, he has also drawn praise from advocates of freedom and free speech.

In modern professional sports, Kaepernick’s stand (or seat) is a rare and welcome example of high-profile, highly-paid athletes taking a stand on important public issues.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” Kaepernick said in an interview with NFL Media. “To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

While Kaepernick is not breaking any law, his symbolic protest follows a tradition of high-profile athletes speaking out on civil rights issues. Many of these outspoken speakers paid a severe price. In 1968, after Olympic medalists Tommie Smith and John Carlos performed their Black Power salute during the medal ceremony, they were kicked off the United States track team. Two years earlier, heavyweight champ Muhammad Ali was stripped of his title and his license to box for his protest against the Vietnam War and his refusal to enter the military.

Nowadays, when we talk about an athlete or celebrity involved in a battle over free speech, it usually involves some sort of offensive slur uttered by the celebrity. But in recent years, there have been more examples of speech and protest by athletes on civil rights issues, often met with criticism, if not rebuke from the professional leagues.

Professional athletes, many who have vast, loyal, fan-bases, can command their celebrity to draw attention to important public issues. But they are also beholden to their cartel-like leagues and contracts with complicated morality clauses. Though professional sports leagues have great power and influence, they are not government entities. While pro sports leagues can never be accused of being vanguards on civil rights or discussion of public issues, not to mention pillars of ethics, their employees operate largely without First Amendment protections.

Thus, Kaepernick speaks out at his own risk — risk of suspension or termination and, of course, potential loss of sponsorships. On the other hand, his message could indemnify him, as well. Would the league really want to punish a high-profile star who is taking a highly-public stance on one of contemporary society’s biggest, most important public issues? His symbolic speech may rankle some, he is still a speaker, not a criminal.

Freedom of speech is more than just written or oral orations. Speech can be symbolic and the United States Supreme Court has ruled on a vast range of such speech. Closer to the Kaepernick sit-in is a body of law dealing with the Pledge of Allegiance. In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court invalidated a state law that required students to stand and recite the Pledge of Allegiance. A group of parents and students challenged this requirement based on religious grounds.

Justice Robert Jackson’s opinion, dismissing the law and the requirement, addresses freedom of speech just as much as it addresses religion. He notes that speech can be symbolic and compulsory acts of patriotism, such as saluting the flag, can be rooted in totalitarianism as much as patriotism. Compulsory patriotism is actually antithetical to free speech values, Jackson wrote.

In his conclusion, Jackson wrote, “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing other.”

Nowadays, aside from the manufactured public relations photo ops, most pro athletes’ off-the-field headlines range from the frivolous to the scandalous and nefarious. In some ways, it is refreshing to see a star athlete speaking out on important issues, regardless of the consequences. By sitting down during the national anthem, Kaepernick is actually standing up not only for civil rights but for free speech.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.