Given on September 22, 2017
In a speech given in Alabama on September 22, 2017, President Donald J. Trump made derogatory remarks towards African-American National Football League (NFL) players who had been engaging in a silent symbolic protest prior to the start of NFL games. During the playing of the national anthem, several players either chose to remain seated or took a knee until the end of the anthem. President Trump chastised the players in a Twitter post on September 24, 2017, saying that the players kneeling were “disrespecting our Flag & Country.” In subsequent NFL games, players continued their silent protest prior to the playing of the anthem. LEARN MORE
President Trump’s Twitter post that said NFL players who were kneeling were “disrespecting our Flag & Country” is ignorant of the message of the players’ silent protest and unaware of the case law regarding the use of the flag to communicate a message. First, it is clear that the issue of kneeling is a divisive issue with arguments of merit on both sides. Colin Kaepernick, the NFL player who first kneeled in protest during the playing of the national anthem in 2016, did so because he did not want to show pride in a flag for a country that “oppresses black people and people of color.” President Trump is trying to distract from that specific message by saying it is disrespecting the country while Vice – President Pence further confused the issue by saying the protests disrespected soldiers. The response and statements by the President and Vice – President make it clear that they are unable to craft a response that directly addresses the message of the protests – racial oppression against blacks and people of color.
In 1989, the U.S. Supreme Court in Texas v. Johnson decided that the burning of the American flag as an act of protest was protected by the First Amendment as a form of symbolic speech. This case is instructive when viewed in the context of NFL players kneeling before the playing of the national anthem at a sporting event. The court declared that the act of burning the American flag was protected speech under the First Amendment because it was conduct that had the intent of conveying a particularized message that would be understood by those who saw the flag being burned. In the NFL protests, the players are not physically desecrating the flag (which the Supreme Court permitted) but are merely refusing to stand at attention in order to express their disappointment at the oppression and killing of minorities in America. If a person can be permitted to pour gasoline on an American flag and light it on fire to protest American policies then surely athletes refusing to stand at attention for a few moments as a form of silent protest is a permitted action under the First Amendment, too. The Supreme Court has justifiably protected non-verbal expression and the non-threatening symbolic gestures undertaken by the players also deserve the full protections of the First Amendment. LEARN MORE.
- American Civil Liberties Union (ACLU) – article and information on the NFL controversy.
- Non-Profit Anti-Racism Coalition – web page of an alliance of groups and individuals committed to ending institutional racism.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact firstname.lastname@example.org.