Kneeling on the Constitution

By: Natalie Awad 

In 2016, Colin Kaepernick, quarterback for the San Francisco 49ers, kneeled during the national anthem. This action spurred protests that continue today as NFL players have either knelt, sat, or raised their fists during the national anthem.

The demonstrations have sparked controversial debate over whether these protests are unpatriotic and disrespectful of the flag of the United States, or a peaceful protest to call attention to prevalent issues of racial inequality and police brutality.

At a rally for Senator Luther Strange in September, President Trump vented about the NFL anthem protests. “Total disrespect of our heritage. That’s a total disrespect of everything that we stand for…and I know we have freedoms and freedom of choice and many many different freedoms but you know what, it’s still totally disrespectful.”

Many have taken issue with President Trump’s interjection into the situation. For instance, Alex Watters, a 3L student, says, “I understand both sides of the argument. I consider myself to be patriotic, so I understand the desire to respect the national anthem. I don’t think this is an issue that the President should involve himself with. I think this is outside of the office’s purview. This is an issue to be discussed by the people and decided by the people.”
So, let’s discuss.

When asked about the Constitutional “free-speech” repercussions of this issue, LSU Law Professor Michael Coenen shared, “Because the NFL is not a ‘state actor,’ a league-based anti-kneeling policy would not directly implicate constitutional free-speech protections. That said, from a policy prospective, a prohibition on kneeling would reflect a shameful capitulation to some of the President’s most divisive and anti-democratic impulses.” Professor Coenen also notes, “The NFL could more productively channel its anti-kneeling energies towards a plan for deterring end-of-game ‘kneel-downs’ by victorious teams.”

Candace Square, the 1L representative for her class on the Diversity and Professionalism Committee, also shared her thoughts, “The protests that are occurring in the NFL, I think, are greatly misunderstood. A common misconception is that the players are protesting the flag or the national anthem itself. It’s not a protest of the flag, but more of a way to call the country to live up to the ideals that the flag represents. The players want to encourage equal justice, racial justice, and police reform.”

“I think this original meaning is obscured by the cultural sensitivity around the flag and anthem. Of course, what brought more attention to this protest was Donald Trump calling the players, ‘sons of bi*****.’ It’s noteworthy that he did not resort to using profanity when referring to the KKK members and Neo-Nazis in Charlottesville, but instead, referred to some of them as ‘very fine people.’”

Candace continues, “As far as commentary from the law school community, the students I spoke with generally have no issue with the protest. It’s easily forgotten that many Americans didn’t support the now revered civil rights movement or the now iconic photo of Tommie Smith and John Carlos raising their fists at the 1968 Olympics. I applaud Colin Kaepernick for his boldness and willingness to step out on his own. I think he has sparked something truly special and will be remembered well for it in the future.”

The conversation shouldn’t end here. As future lawyers and pillars of a diverse community, we each have a responsibility to lead the conversation, kneeling on the Constitution as a foundation.