Matters Column

Football and the First Amendment — who do we root for?

September 9, 2016
| By Bill Rohn |
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There is no denying the power of athletes to affect, inspire and even anger us. 

It's not just their actions, such as fumbling a punt snap on the last play of a big college game.  They also affect us with words, gestures or expressions. They do it when they stand.  And they do it when they kneel. 

Take Colin Kaepernick: He is the San Francisco 49ers' quarterback, believed to be one of the best in the game a couple years ago. Now, he is fighting for a job in the NFL. He refused to stand for the national anthem prior to a preseason game last month. 

Kaepernick said he remained seated to show his concern over justice in America. After outrage over his actions, Kaepernick offered numerous quotes, including statements to the effect of, “We have a lot of people that are not being treated equally…”  He also said Americans need to do something about “police brutality.” 

Kaepernick said he was concerned over what he saw as unfair treatment of citizens — often African Americans by police officers — and he could not stand for the anthem of a nation where actions that offended him were occurring. 

As controversy over Kaepernick's stance accelerated, his activities grew.  For example, he was photographed wearing athletic socks adorned with drawings of pigs wearing police hats.

In the face of criticism from some and support from others, Kaepernick — on the Thursday before Labor Day — decided that, instead of sitting during the national anthem, he would “take a knee.” In other words, just as another quarterback named Tim Tebow once decided to kneel at a football game to express religious views, Kaepernick chose to kneel on one knee as an expression of his viewpoint.

Sometimes, it's hard to hear the words others say. It's not that we fear words themselves. I have a dictionary full of them in my office — not a single one scares me.  But combinations of words, and ideas they express, often provoke anger. Simple gestures also can provoke. 

I remember being in first grade at Meadowlawn Elementary School in Kentwood. We were getting ready for Christmas, when a girl named Christine said there would be no Christmas tree and no Christmas at her home. 

Christine and her family were Jewish. They did not worship as my family worshipped at St. Mary Magdalen, only four blocks away from our classroom. 

Christine's words might have offended me, but first-graders don't use words like “offended.”  I know some of us were angry at the thought — if Christine's idea caught on — Christmas might be canceled. We clumsily discussed sneaking a Christmas tree into her family room.

The unfulfilled plans of 6-year-olds aside, it is clear things first-graders and first-string quarterbacks say and do can offend others.

A related question is whether the expression of unwelcomed ideas can be a good thing.

The First Amendment to the United States Constitution states, “Congress shall make no law … abridging the freedom of speech …," yet it protects more than speech. The Supreme Court has “long recognized that its protection does not end at the spoken or written word.” In fact, the quote comes from a case in which the Court struck down a statute prohibiting flag burning, because the statute was designed to protect “a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals” — a protection that was contrary to the freedom afforded by the First Amendment.

Sound familiar? That principle explains why Kaepernick was not charged with a crime for his protest of the national anthem. 

The First Amendment is not without limitation. One cannot shout "fire” in a crowded theater. Companies cannot make misleading claims in advertisements. One cannot incite another to immediate violence.  But the type of “speech” Kaepernick engaged in is exactly the type of free expression the First Amendment was designed to protect.

On the weekend after Kaepernick sat through a national anthem, one of my partners took to social media to express his disappointment. In doing so, he expressed his right to free speech and expression. My partner's Facebook friends joined in, and in doing so, they also expressed their views. It's something we're allowed to do.

With the First Amendment in mind, I've been scanning postings from Twitter about Kaepernick's actions. A man named Bradon wrote, “There are more ways to address a problem than being disrespectful to your country. I have no respect for Colin Kaepernick.”

Perhaps in response, a man named Julius wrote, “C'mon, Kaepernick not standing for the anthem doesn’t mean he doesn't love America. It means he loves his country enough to say that something is wrong.”

I have mixed feelings here — very mixed feelings. Part of what bothers me about the Kaepernick affair is reflecting on the thoughts of those who believe Kaepernick's actions and statements were disrespectful to soldiers who have died in service to our country. The deceased includes my wife's brother Bob Hill. Bob would be 70 years old this fall had his helicopter not been shot down while he served in Vietnam in June 1970. 

Today, 46 years after Bob's funeral, I also am struck by a posting from an armed forces veteran named Mike, who considered Kaepernick's conduct and wrote, “After a lot of thought about this I realize that this is the exact thing that I swore to defend. Freedom.” Mike wrote under the hashtag “#VeteransForKaepernick.”

So, it's not just athletes. Rather, there is a power in each of us and in all of us to affect, inspire and challenge each other.

Kaepernick’s kneel on the Sept. 1 exhibition game was played on Military Appreciation Night in San Diego, and for reasons that are unclear to me, Kaepernick decided to stand for the playing of “America the Beautiful,” before the start of the fourth quarter.

At some point during the game, in response to Kaepernick's prior actions, one fan held up a large banner that read: “You’re an American. Act like one.”

The sign reflected one American's thoughts and views. 

I don't know if Colin Kaepernick saw the sign. If he did, he might have thought, "Well, I’m sorry." Or maybe he thought, "Well, I am an American, and I hope I am acting like one."

The NFL's regular season is underway.  And a new group of first-graders has begun class at Meadowlawn Elementary. They'll learn reading, writing and arithmetic. Someday, teachers will tell them that our laws protect us all.

Bill Rohn is chairman of Varnum’s Trial Practice Group in Grand Rapids.

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