NFL protests highlight principles of free speech

Michael Dwyer
Several New England Patriots players join in the protest movement by kneeling during the national anthem. Former 49ers quarterback Collin Kaepernick began the movement in 2016. (Michael Dwyer/AP Photo)

Recent protests spreading across professional sports have brought renewed attention to the right to protest and the First Amendment.

Freedom of speech is one of five key elements included in the First Amendment. Because of this, it was one of the first U.S. laws written down and immortalized in the Constitution.

BYU School of Communications Director Ed Carter said the NFL protests are interesting because they create situations that spur discussions of free speech.

Carter said the NFL protests also bring to light the major risk protestors face in trying to gain media attention. He said the meaning behind protests can often get lost in the process of drawing recognition.

“What you have to do to get attention is something abnormal or different because news media values what’s out of the ordinary, but then the attention is focused on the unusual thing you did, not the reasoning behind it,” Carter said.

A history of protest in sports

NFL players on a variety of teams have been kneeling during the national anthem, starting in 2016 with former San Francisco 49ers quarterback Collin Kaepernick. The movement began as a means to draw attention to police brutality and racial injustice.

The Associated Press estimated more than 130 NFL players kneeled or sat during the national anthem at several games Sept. 19 of this year.

According to a PBS News Hour poll, 46 percent of U.S. adults said they felt the protests were disrespectful, while 48 percent said they felt the protests were an appropriate way to draw attention to the issue.

But these protests are not unique to football. Sports and protest have a long standing history, especially where issues of racial injustice are concerned.

The New York Times reported five incidents of protest during the national anthem at major athletic events spanning from 1968 to 1996.

In 2014, NPR reported six significant incidents of protest at major athletic events, including NBA games, NFL games, Olympic events and college sporting events. Protests included in the article spanned from Muhammad Ali’s 1966 protest of the military draft, to five St. Louis Rams players protesting Michael Brown’s death in 2014.

Michael Conroy
Members of the Cleveland Browns are among many in the NFL to take a knee during the national anthem. The form of protest was initially started to raise awareness of police brutality. (Michael Conroy/AP Photo)

Reactions to the protests

Carter said he believes Kaepernick’s protest and others are perfect examples of acting out the liberties and rights afforded by the Constitution and represented by the flag.

“To me that’s the point of the flag — to say that you have the right to protest. What the flag stands for is your right to disrespect the flag among other things,” Carter said.

NFL officials, owners and sponsors have been on varying sides of the issue.

On Sept. 24, Owner and Chairwoman of the Detroit Lions Martha Firestone Ford issued a statement in support of players’ right to free speech.

“Our game has long provided a powerful platform for dialogue and positive change in many communities throughout our nation,” Ford said in the statement.

The NBA has a much clearer rule on protest and issued a memo on Sept. 29 reminding coaches and players that they must stand for the national anthem.

President Donald Trump and his cabinet have been vocal about their disapproval of the NFL protests, suggesting actions be taken against the players participating in the protests. Vice President Mike Pence left a Colts game on Sept. 8 because players were kneeling during the national anthem.

BYU American studies major Melodie Jackson studies social constructs and said she often uses social activism and protest to draw attention to issues that matter to her.

Jackson said she feels that protests like Kaepernick’s have been very effective in bringing awareness to police brutality, but wishes more focus would be given to the message behind the protest.

“It’s really a shame that people are more focused on the protest itself than the actual cause behind the protest, because if they paid attention then they might see ‘oh, this is why they are kneeling and maybe we should get behind the cause too’,” Jackson said. “Protest isn’t meant to make people comfortable, it never has been, it never will be.”

First Amendment and free speech

BYU political science professor Ray Christensen said he views the issue of protest from a constitutional standpoint and said the Constitution will always side with free speech.

“The First Amendment is about protest, so it’s hard to imagine protests harming our constitutional rights. The mere fact that people protest shouldn’t weaken the First Amendment. If anything it should strengthen it,” Christensen said.

Ty Mullen
A DACA protester holds a sign outside the Utah State Capitol Building. Protesters heard from several community leaders at a Sept. 16 protest in Salt Lake City. (Ty Mullen)

While Christensen said he believes protests only strengthen and reaffirm First Amendment rights, Carter said protests themselves may be at risk of losing their power of influence when the free speech tool is abused.

Carter said when several different protests come up for a variety of causes, it can threaten the novelty of protest.

“Protests at some point could become a sort of ‘boy who cried wolf’ situation. If there’s too many protests then people get kind of tired of it and write it off and they won’t pay attention to the substance of it,” Carter said.

Carter said he often cites John Stuart Mill’s theory of a marketplace of ideas when considering principles of free speech and evaluating messages.

Mill’s theory supports free speech and a variety of ideas on the fundamental basis that truth will come out on top in the competition of ideas.

Carter said the key to navigating a surplus of protests is found in Mill’s theory and evaluating the message itself.

“Even though the Constitution and the marketplace (of ideas) would say every person has a right to express their message, within the marketplace our role as citizens is to do some evaluation of those messages and not just assume they’re all the same,” Carter said.

In regards to the NFL protests and the marketplace, Carter said the issue involves private entities and not the government. He said while private entities are not necessarily held to the same legal standards as government, they are often expected to honor free speech in the same way.

Both Carter and Christensen cited the 1989 landmark case Texas v. Johnson as a crucial standard the Supreme Court set regarding protest.

The case focused on Johnson’s action of “symbolic speech” when he burned the U.S. flag, an action which violated a Texas statute at the time.

The Supreme Court majority sided with Johnson and determined his actions were “symbolic speech” and therefore protected under the First Amendment.

Christensen said this case and many others reaffirm how important free speech is, and how difficult it can be to regulate speech or protest.

“The speech that has to be protected most is odious speech,” Christensen said. “Because what you have to remember is (that) whatever standards you give to speech you don’t like will then be used against the speech that you do like, and that’s the great conundrum of the First Amendment.”

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