For a land of liberty lovers, we sure don’t love the exercise of liberty very much
I totally get that sports media has decided the Kaepernick protest saga is the gift that keeps on giving ratings (so they will continue to play both sides of America’s massive racial divide ad infinitum) but at the bottom of all this mess is an important liberty principle that should be defended regardless of which side of the flag protest fence you emotionally stand (or sit) on.
As Eugene Volokh put it, the right to utter even unpopular speech is at the core of first amendment liberties:
“As the <Supreme> court wrote in a 1972 college student speech case (quoting Justice Hugo Black), First Amendment protection ‘must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.’”
The very reason it is considered one of our fundamental rights is because accepting general restraints on speech is tantamount to saying free speech can always be regulated (when it is unpopular or out of step). Every argument for why someone else should “shut up” is in essence an argument for why you should also, in controversial situations, not be allowed to voice your own opinions.
So all of the litany of arguments for why Mr. Kaepernick should not have said what he said are, in essence, calls for prior restraint of speech and contrary to the liberty interests of every single person who could be reading this article now.
In fact, I suspect that this is one of the reasons why Evelyn Beatrice Hall (in her book about Voltaire in 1906) probably said:
“I disapprove of what you say, but I will defend to the death your right to say it.”
Oh, one other thing, the majority is often flat wrong, and sometimes the hated rebels are telling us the truth (see Edward Snowden or the theory of the Earth being flat). People also have the right to be wrong and even monumentally wrong (see the Alt Right and Neo-Nazi movement). We can agree to disagree, even vociferously, with what people have to say but we should not argue that they have no right to speak what they believe.
Our Constitution is a counter-majoritarian document designed to protect the liberty interest of the people (or of any particular citizens) against overzealous or fascist government or enforced fascist majoritarian sentiment. The First Amendment exists so that everyone (rich, poor, famous, unknown, voting, non-voting, serving, non-serving, and with any and all hair styles) get to exercise their right to have an opinion using their own mouth or body.
This week in particular, as outraged as I am (and I am VERY outraged) I keep seeing calls to free speech fascism in response to the fascism of the Alt-Right and the Neo-Nazi movement. As always, we should defeat bad speech using and not discarding our core beliefs (beat a bad argument with a better argument). Once we start letting lines be drawn which create acceptable exceptions we have set precedent for the silencing of anyone for anything.
What Good Are Freedoms That You Aren’t Allowed To Exercise?
No offense, to be honest I have always thought Mr. Kaepernick was a pretty terrible quarterback. But that has very little to do with if he should or ought to be allowed to protest. Most of the arguments used against him seem pretty weak to me.
Colin Kaepernick is rich
Why can’t rich people speak out against injustice? Sometimes, having means provides you access to the press that a poor or inner city person might never have. For a democracy to function well, it requires that all of it’s citizens are willing to speak out against injustice.
It hurts Colin Kaepernick’s team
He seems to understand that and be willing to sacrifice his job to stand up against what he sees as illegitimate police power. Even if he is wrong, that is a pretty gutsy stand to take (especially in the face of the criticisms). Is the argument really that football is more important than exercising your constitutional right to protest?
Colin Kaepernick was raised by white people
Do I really have to respond to this one? First, if a white person refused to stand for the anthem would they be disqualified from protest because of skin color? Also, he is mixed-race, which means he has probably experienced disproportinate attention from police and been disadvantaged in many structural ways throughout his life. Finally, you can see and speak out against injustice even if it doesn’t directly affect you. Also, I am white and I speak out about all kinds of things and rarely get the pushback that Mr. Kaepernick gets (not hard to figure out why that is).
There are better places for protest aside from a football game
Really? I think the main reason the protest has gained so much attention is precisely because it has been happening during America’s favorite sporting events. There are reasons why Time, Place, and Manner restrictions on protesters are often found by the courts to violate free speech or the right to assemble.
Meaningful protest disrupts the seamless operation of power in order to make people pay attention. This is the reason why “Free Speech Areas” or ‘appropriate’ protests rarely gather the attention of anything other than flies. It is the power of the venue or symbol, combined with the message, that makes the protest noticeable.
What good is protest if the opponents of the message get to marginalize it by prescribing its acceptable location? What good are rights that majoritarian concerns prevent us from exercising?
Mr. Kaepernick Didn’t Even Vote
What the heck does this have to do with the price of tea in China (in logic class this is what might be called a Red Herring)? The Constitution doesn’t say it’s protections are limited to those who vote and the Declaration says our rights are unalienable. Do you have to respect Mr. Kaepernick’s personal choices, no? Do you have to afford him his Constitutional rights, yes.
There is also some irony here as only 59.7 percent of eligible voters cast a ballot for President in 2016. If this becomes the standard for acceptable speech, there will be a whole bunch of Americans (many of whom were probably calling out Mr. Kaepernick for not voting) clamming up in the near future.
Our Flag Stands For Rebellion, Not For The Status Quo
Look, even Veterans are split on this issue, as one of the members of the group Veterans for Kaepernick said recently:
“Too much focus was given to the symbol of [Kaepernick] sitting rather than the message,” McCastle said. “His message was being clouded by constant slander … there are veterans who are not only not offended but are actually behind him and are indeed proud of how he exercises the rights we fight tirelessly for.”
And he is not wrong, as the Supreme Court has said many times and in many ways over the years (in regards to the right to protest):
“Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”
But even more important, the Flag itself serves a symbolic purpose and activities that use the flag symbolically are powerful and protected specifically because the flag is used. As the majority in Texas v. Johnson (a famous flag burning case) concluded:
“The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.”
I suspect those colonists throwing tea over the side of the Dartmouth in Boston were well aware that they were taking a radical and dangerous stance. We were born in radical expression and our national symbols reflect that fact.
Dissent Protects Us From Fascism
Let’s say you totally disagree with Colin Kaepernick about police violence (and many do). What if you believe that to not support the anthem is a slap in the face against our troops (although Kaepernick has explicitly stated from the beginning that his protest has nothing to do with opposing the military and that he supports the troops).
But, what if you turned out to be wrong?
What if the United States has been gradually building up a police force that seems more like an attacking army than one designed to protect and serve?
And what if that attacking army has been disproportionately used against communities of color?
And even if none of that is true, what if some officers are out of line or are prejudiced?
And I know some people believe because some police have been exonerated that means there is no problem, but the truth is much more complicated because the very standards we use to determine police complicity set an incredibily low bar.
If we make it ‘out of bounds’ to talk about issues like this, how would we ever address critical problems with armed police forces granted discretionary power over life and death? How could we ever oppose police powers that can turn into liberty trampling or life ending powers?
Free speech, the ability to call out injustices where you see them, helps draw attention to issues that we otherwise might ignore.
We might ultimately decide as a country, in the case of Edward Snowden for instance, that we care more about personal security than we do about our constitutional protections. But, would we have even had the right to decide that as a society without someone speaking out?
When “Law and Order” has been a consistent theme of the current administration, we should not be foreclosing opportunities for speaking out against government (police are an arm of the government). You would think that conservatives (always suspicious of government), libertarians, and liberals could all agree on this point while still believing that protecting our police from violence is also important.
The Marketplace of Ideas
Have you been following the 1,000’s of people who have an opinion on Mr. Kaepernick’s protest? Or any of the other social stands that we always suggest “start a discussion?”
Turns out, that is exactly what free speech is supposed to encourage. Not the violent threats or calls for physical harm to Mr. Kaepernick’s person but the discussion of the issues surrounding his protest.
Mr. Kaepernick may indeed turn out to be totally wrong, but what if because of the discussion, society changes how they think about freedom of speech, inner-city violence, or how we look at the police?
This is known in First Amendment circles as ‘Marketplace of Ideas Theory’ and was perhaps best explained by Stanley Ingber in his 1984 Duke Law Review Article when he said:
“This theory assumes that a robust process of debate, if uninhibited by government interference, will lead to the discovery of truth, or at least the best perspectives or solutions to societal problems.”
In other words, we are much more likely to get to the truth by having discussions unfettered by censorship (government interference). This works both ways, if some of what Mr. Kaepernick is saying turns out to be wrong, we all learn that in the process of discussing his arguments.
Information flows naturally favor the people in power so it becomes ever more important for normal people’s right to speak out to be protected, otherwise, as Mr. Ingber continued, “the marketplace simply fine-tunes differences among elites while defusing pressure for change and fostering a myth of personal autonomy essential to the continued popular acceptance of a governing system biased toward the status quo.”
So, if we don’t allow people the space to speak, we will only hear the messages of the powerful, and those messages will rarely be about truth. There has been a powerful move in this country lately to restrict public access to comment sections and social media and to reestablish elite gatekeepers. We are returning rapidly to the days of theorists who believe that only the educated Elites can truly defend Democracy because ‘The Masses Are Asses.” Sadly, in many cases, it is Progressives who are leading the charge.
Don’t be fooled for a second, claims of “Fake News” on the right and of the need to reestablish gatekeepers on the right are really about controlling who gets to tell the stories. In both cases, the hope is to have sole control over who gets to deliver the “official” and sanctioned narrative to the public. The answer to Right or Left wing fascism is that neither be allowed a monopoly over public channels of communication (including but not limited to the internet or the airwaves).
There are hundreds of other arguments that have been made, I have yet to see any that do not fly in the face of the reasons why, as a society, we are supposed to value and protect free speech (even when we don’t agree with it). When people recite slogans like “freedom isn’t free” those slogans are usually about the necessity to always fight for Democracy or risk losing liberty.
At the end of the day, protecting speech and protest is the best bulwark against tyranny the founding fathers could devise. I suspect, we should trust that their wisdom probably extended beyond collective outrage over the disruption of a social game and populist ritual.
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Josh is a 100% reader-funded blogger and freelance writer. Please consider following him on Twitter, throwing some money into his hat on Patreon, or adding his blog OnPirateSatellite to your feeds.
