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Good sports in the high court

The Supreme Court approves of bended knee.

The protests of some professional football players during the display of the American flag and the National Anthem has pointed a finger at self-proclaimed “patriots,” including the President, who neither understand nor accept the First Amendment right to freedom of speech. The Supreme Court has for many years accepted as “speech” all kinds of actions that affirm a personal point of view; donations of money to politicians, for example, count as “speech.” The Court has also ruled on the flag salute, which in military pageantry in sports (paid for by funds from the Defense Department*) also features the National Anthem.

The following selected passages from the Supreme Court wisely affirm the symbolic protests of those who with a bowed head take “a bended knee”:

“W. Va. Board of Education v. Barnette. There is no doubt that, in connection with the pledges, the flag salute is a form of utterance [i.e., “speech”]. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. . . . Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn. . . .

It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. . . .

Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. . . .

But freedoms of speech and of press, of assembly, and of worship . . . are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. . . .

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. . . .

We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State . . . , the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. . . .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty [i.e., the President], can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Clearly, then, the First Amendment (and 14th applying the Bill of Rights to states) allows all manner of legal, non-violent protest. Therefore, patriotism-love of country-is also expressed in protests that critically seek to strengthen the social fabric of America. Furthermore, students may not be punished for similar protests. I wonder whether TV viewers at home and in sports bars stand, take off their hats, and cover their hearts during the ceremonies. If not, why not?

Thomas A. Regelski is an emeritus distinguished professor at the State University of New York at Fredonia.

* — According to a 2015 Senate report by two GOP senators $6.8 million in Defense Department contracts with professional sports fund “paid patriotism.”

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