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First Amendment vs. Patriotism: In taking a knee during the National Football League’s pre-game playing of the national anthem in 2016, Colin Kaepernick not only sparked debates regarding social justice issues, but also created a national controversy surrounding the Constitution, patriotism, and protest. With many other parties, such as students and athletes, replicating Kaepernick’s actions, while other observers found his actions detestable and contestable, ethical and legal questions emerge, with the First Amendment being at the center of the debates. Investigating the First Amendment’s intentions, other symbols of patriotism, similar patriotism and protest cases, possible contradictions to the amendment, and individual liberties of American citizens helps illuminate the debate, defining a perspective that elaborates on protected speech and whether patriotic symbols should be legally protected from protest acts. After analyzing these ethics-based arguments based on Kaepernick’s protection under the First Amendment, while addressing counterarguments lead to the view that the First Amendment does protect the kind of protest undertaken by the likes of Kaepernick.

The First Amendment and its Original Intentions: Freedom of expression, a central tenet to the American way of life, is constitutionally protected under the First Amendment. The Amendment also covers the issue of protest, where it bars Congress from prohibiting the people’s right to “assemble, and to petition the Government for a redress of grievances" peacefully, in addition to the Amendment’s provisions for freedom of speech and religious expression . Based on Supreme Court interpretations, the First Amendment not only covers Congress, but all government agencies. The Amendment also broadly interprets speech and press, covering not only talk, writing, and print, but also broadcasting, Internet use, and symbolic expression, with the latter being particularly relevant in the context of peaceful protest . Notably, the Constitution provides for exceptional circumstances under which protection does not apply under the First Amendment. Whereas the government may not infringe on an individual’s right to peacefully protest, it can regulate the “time, place, and manner” of protest, establishing a crucial consideration in the debates surrounding constitutional protection of protest. In relation to the original intentions of the First Amendment, exploring the potential notions on the rationale that drove the founding fathers to consider this constitutional provision helps shed light on the issue. According to Find Law, the British monarchy had punished those that rebelled in the American colonies prior to independence. Such punishment was often very violent. As a result, the constitutional provision protecting peaceful protest may arguably have been in reaction to such punishment, with the founding fathers seeking a way to allow Americans the right to protest peacefully without facing government condemnation.

Symbols of Patriotism and the First Amendment in the Context of Protest: The controversy surrounding Kaepernick’s protest partly arises because of the involvement of symbols of patriotism, replicating the scenario in other cases in the past. The American flag and the national anthem are important symbols of patriotism among many Americans. According to Graglia, many Americans view the flag as a symbol of national unity and greatness, which leads them to take great offense at desecration of the flag. Similar offense taken in light of Kaepernick’s actions, indicates comparable reverence of the national anthem by many Americans. The attachment to these symbols and strong sense of patriotism has even led states like Texas to institute statutes making the public desecration of the national flag a punishable offense. However, Allen cautions that such reverence is not universal, with some Americans viewing the flag as a symbol of white supremacy, aggressive militarism, and American militarism. As a result, this sense of patriotism attached to these national symbols has constitutional implications. For instance, laws prohibiting the desecration of the flag may be interpreted as inhibiting expression under the First Amendment. Similarly, censure of peaceful protests entailing symbols of patriotism such as the flag and the anthem may be viewed as violating constitutional protections under the Amendment. However, opposing voices may argue that the constitution’s provision that the manner of protest may be regulated could open the door for interpretation and restrict individual protections under the Amendment in a case where the desecration and violation of patriotism symbols is deemed contestable. These observations demonstrate how the debates surrounding symbols of patriotism and the First Amendment around protests arise.

Related Cases and Decisions: Kaepernick’s protest of the anthem, however high profile, is by no means the first instance in which an American has used symbols of patriotism to express dissent. Most of the similar notable cases occur in climates characterized by serious national issues, such as war or social justice questions. For instance, an article in The Chronicle of Higher Education in 2003 cites the case of Toni Smith, a Manhattanville College women's basketball, who protested the probable war with Iraq by turning away from the flag while the national anthem played. In similar fashion to Kaepernick’s case, Smith’s actions attracted support from certain quarters who felt she was simply exercising her constitutionally protected freedom of expression and right to protest, alongside stiff opposition and criticism from others who felt she was being unpatriotic. In other examples, courts have ruled on protest acts, providing insights into interpretations of the First Amendment. In United States vs. O'Brien 1968, the Court ruled against O'Brien after he had burned his draft card in protest of the Vietnam War, with the Court noting that O'Brien’s punishment stemmed for his conduct, reflecting the manner of protest, rather than his expression of opinion about the war. Meanwhile, in Texas v Johnson in 1989, the Court overturned Johnson's conviction for flag burning, in the process invalidating a Texas statute prohibiting the desecration of the American flag. These case examples demonstrate the importance of the issue, the societal debates surrounding it, and some of the decisions reached.

Key Arguments on the Debate: In Support of Kaepernick’s Right to Protest and its Protection by the First Amendment One of the rationales for support for Kaepernick’s right to protest arises from the protection of this right under the First Amendment. According to Ely, “inhibition of political expression violates the First Amendment, with explanations for such inhibition, as exemplified by state prohibitions of desecration of national patriotism symbols, being hardly articulable”. Willingham concurs with Ely, designating the constitution protects such silent protest. The use of precedents in court decisions demonstrates that cases like Kaepernick are protected under the Constitution, as exemplified by the Texas vs. Johnson decision. Ely notes three landmark decisions since 1969 have seen the Supreme Court actually reverse convictions of people accused of desecrating the flag during their act of political protest. Using these observations, Kaepernick can be considered as having acted within his constitutional rights as well. Considering the initial intentions of the founding fathers in drafting the First Amendment also demonstrates that Kaepernick’s actions were in accordance to the spirit and their objective. In light of the harsh punishment applied by the British, the founding fathers sought to ensure Americans can dissent and “petition the Government for a redress of grievances” without restriction, with peaceable dissent being the focus. Silent protest, as happened in Kaepernick’s case, exemplifies such peaceful dissent and aligns with the original intentions in instituting the First Amendment. As a result, Kaepernick protesting through kneeling, was not only within his constitutional rights, but also acting in accordance with the spirit of the law. Another rationale for supporting Kaepernick’s actions derives from considering the ethical perspective. According to Kane and Tiell, deontology assesses actions through a set of applicable rules. In an article by Deontological Ethics, deontology is defined as coming from the Greek word for duty and is based on the premise that the morality of an action should be based on whether the action is right or wrong and not on the consequences. Kane and Tiell support that Kaepernick performed his protest under deontology ethics, where he had a duty to morally perform the protest, regardless of what the ramifications would be. Under the First Amendment, his actions are permissible, as he exercised his freedom of expression and peaceful assembly to petition the government. Additionally, Kaepernick did not violate any NFL laws, as the NFL Handbook and Collective Bargaining Agreement does not address conduct during the national anthem’s playing. Meanwhile, Kane and Tiell also observe that consequentialism validates Kaepernick’s actions, as the outcomes for socially oppressed US citizens would benefit from the widespread attention to the matter of protest, namely police brutality.

Opposing Views: Contesting the Protection of Such Protest: One of the counterarguments to Kaepernick’s protest arises from the view that his actions do not find protection under the First Amendment based on the manner and content of his protest. In this case, Find Law observes that government may regulate “time, place, and manner” of protest, under which the manner of protest by Kaepernick could be contested. Whereas Kaepernick is free to protest against social oppression and injustice, disrespecting the national anthem may be viewed as providing room for censure. Using United States vs. O'Brien, a similar view can be reached regarding Kaepernick’s protest, whereby O'Brien’s burning of his draft card can be equated to Kaepernick’s kneeling during the national anthem. In both cases, protest of war or social injustice is constitutionally protected, but the manner of conducting such protest is not protected. However, a rebuttal to this argument is possible through considering that the rest of the decisions in similar cases since O'Brien have highlighted protection under the First Amendment even when desecrating symbols of patriotism. The government may restrict expression when considering defamation, fighting words, true threats, child pornography, obscenity, and in advertising contexts. In addition, the government may restrict expression for individuals in special relationships with the government, as well as for reasonable content-neutral considerations, such as noise, blocked traffic, and large signs. Given that these restrictions are inapplicable in Kaepernick’s protest, protection under the First Amendment cannot be invalidated. Another contention against Kaepernick pertains to the issue of deviance, which refers to any behavior or conduct that would be deemed unacceptable or which cause a collective negative response. According to Intravia, Piquero, and Piquero, some parties may view a professional football player’s protest by taking a knee or sitting during the national anthem as evidently deviant. However, citing several polls and studies, Intravia, Piquero, and Piquero establish that opinions are split in half, with a notable racial, age, and political party divide. As a result, Kaepernick’s actions are arguably not deviant, as about half the American population and majority of some populations do not find his actions reprehensible.

Conclusion: The controversy sparked by Kaepernick’s actions during the national anthem have not only brought attention to social justice issues, but also led to debate regarding protest and patriotism in the context of the First Amendment. Kaepernick’s protest conduct appears to find strong support from judicial precedents that indicate his protection under the First Amendment. In addition, the initial intentions of the founding fathers in instituting the Amendment alongside ethics based arguments further support Kaepernick’s actions. Meanwhile, opposing views based on Kaepernick’s lack of protection by the amendment based on the manner of protest and exceptions can be contested, while the view that he acted in deviance is also not compelling. Overall, the considerations lead to the conclusion that the First Amendment protects Kaepernick’s kind of protest in spite of patriotism-based contentions.