Colin Kaepernick, Free Speech, and Meaningless Gestures

By now, most football fans – if not the rest of the free world – are aware that backup San Francisco 49ers quarterback Colin Kaepernick has decided not to stand during the playing of the National Anthem and the displaying of the colors at National Football League (NFL) games he is a part of or attends.

So many people from so many angles have made much of this gesture, and I have my own tidbits to add of course.

  1. Freedom of speech

The words “free speech” and “First Amendment” have been thrown around a lot while dissecting/defending/discussing/etc. this situation, but they have been done so completely erroneously.  These concepts, at least insofar as the constitutional (i.e., legal) concepts are concerned, have nothing whatever to do with what Kaepernick did (or, did not do).

I realize most people have never bothered to read the Constitution of the United States, so it is a common enough mistake, but the First Amendment provides only prohibitions on government1 infringements of various individual rights.  One will notice, if they take the time to actually read the Supreme Law of the Land, that the first word of the First Amendment is “Congress,” and this fact has significant meaning with respect to whom exactly is prohibited from infringing:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (emphasis added).

As the government is not involved at all so far as we can tell – it is not exactly like the government is threatening to throw Kaepernick in jail or charging him with a crime – this defense as commonly thrown around is not relevant to the issue at all.  And these rights do not automatically carry over into employment contracts or relationships, incidentally.  Hypothetically, if the 49ers’ owner mandated he stand and salute the flag during the Anthem – indeed if he mandated that Kaepernick pledge allegiance to it while wearing a tricorn hat – as a condition of his employment, that employer would be well within his own rights as a property owner and operator just as Kaepernick would have the right to quit or accept those preconditions of employment at his discretion.  The First Amendment and subsequent protections for the freedom of speech would nonetheless still be inapplicable in such a situation.  Think about it, he is not allowed to wear a t-shirt on the field of play that communicates any manner of political (or other) message, instead being mandated by both the team and the NFL to wear a conformant, designated, and approved uniform, even though this behavior is otherwise protected from government infringement.

It seems that the San Francisco franchise does not mandate such behavior, in any event.  Again, the free speech issue is simply not an issue at all here.

  1. Meaningless gesture

As to the substance of Kaepernick’s message, it is generally meaningless.  To date, he has not provided specifics of his grievance(s) sufficient to make it so.  As an explanation, he offered “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”  This is simply too broad and nebulous a complaint to be practicably useful.  He did offer some small degree of qualification by following up: “There are bodies in the street and people getting paid leave and getting away with murder.”  This, of course, leads us to assume that his primary beef is with the perceived spate of law enforcement-related incidences in America of late, though that qualifier is still too unspecific to be seriously relevant to any sort of purposeful discussion on policy, behaviors, rules, laws, perceptions, etc.  Readers will note I generally sympathize with what I assume he takes issue with, though I disagree that said problem is unilaterally race-related.  But if Kaepernick were serious about achieving or seeing “significant change,” he would better present his position so that people could digest the case(s) and analyze it to determine agreement/disagreement and potential solutions.  Otherwise, he is just another talking head in a sea of distracting but ultimately purposeless noise.

In the follow-up interview, Kaepernick said “to me this is something that has to change,” but as per usual in the case of modern social justice warriors and the like, he has likewise provided no specifics as to what change he would specifically like to see.  We cannot have a meaningful discussion, or indeed even realistically determine the appropriateness of any given stance, if we have no idea what solutions, proposals, or policies are being sought.  Further, if this issue were truly important to him, I would suggest becoming the change he would like to see in others.  If “this is bigger than football,” then I would suggest he quit football (he may not have a choice soon enough) and join a police force in a community of his choosing which could use an injection of new blood, new ideas, and new approaches, wherein he could possibly make a front-line impact directly and decisively for himself and others.  Or, perhaps, he could run for office, or try and discuss issues with people directly as a writer, radio host, etc.  In any event, sitting down during an anthem and simply stating you will stand when something “changes” is not likely to have an appreciable impact on anything any time soon.

To be fair, some of his statements from the interview do seem to indicate the beef goes beyond the police issue.  Some I can additionally sympathize with (he apparently thinks Hillary Clinton is unfairly treated as being above the law) and some I think are largely misinformed due to media fallacies of assertion.

In any event, this remains a meaningless gesture unless and until he makes it meaningful.

  1. The gesture is foolish

Most importantly, and regardless of whether one agrees with the gesture or agrees with his at least professed motivation, this is quite simply a foolish move on his part (unless he is not being genuine about his goal).  Only a truly naïve person would be surprised by the divisive nature of such a choice, and only an ignorantly stubborn person would continue to believe that by being divisive, one can achieve such a presumed broad social goal(s).

History is quite clear that this is not the case.  If one wants to convince people of the righteousness of their given cause, and consequently hopes to achieve some kind of broad change to that effect, rule #1 is to recruit people to your cause, not drive them away by insulting, vilifying, or otherwise offending them.  Kaepernick cannot do anything at all by himself.  And without leverage – something exceedingly few people in history possess sufficiently to reap the kind of widespread sociopolitical change he presumably wants – the only way to achieve this is with help, and lots of it.  In any context – politics, business, relationships, etc. – affronting the very people you inherently need cooperation from is a predictable nonstarter.

While I disagree with the race bias myopically framing his perspective, even if this were a unilateral question of race justice this is not a smart way to go about fixing the problem.  Whether liked or not, blacks have always needed whites to achieve relevant social justice in America (this should be fairly intuitive, as truly all people need each other in a given society if actual justice and equal treatment for all is to be realized).  Dr. Martin Luther King understood and recognized this truth well, which is just one reason why he was so effective and remains America’s most celebrated civil rights leader today.  In his famous “I Have a Dream” speech delivered in Washington on 28 August, 1963, he rejected behaviors and choices that were unwisely contentious and divisive:

Let us not seek to satisfy our thirst for freedom by drinking form the cup of bitterness and hatred.  We must for forever conduct our struggle on the high plane of dignity and discipline.  We must not allow our creative protest to degenerate into physical violence.  Again and again we must rise to the majestic heights of meeting physical force with soul force.  The marvelous new militancy which has engulfed the Negro community must not lead us to distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom.  We cannot walk alone (emphasis added).

While certainly Kaepernick’s protest is peaceful and nonviolent, and so is ethically in keeping with Dr. King’s sentiments, he fails to grasp the more tangibly practicable but equally important subcomponents of King’s tactics: cooperation and inclusiveness.  If you want your message to be heard, the smart play is to avoid obviously predictable divisiveness.  This is why Dr. King was successful where people and groups like Louis Farrakhan and the Black Panthers were and remain far less so.

Famed author Kurt Vonnegut once wrote “…profanity and obscenity entitle people who don’t want unpleasant information to close their ears and eyes to you.”  In this case, Kaepernick – again assuming his intent is genuine for argument’s sake – shot himself in the foot because he gave the very people he claims to want help from in changing society one way or another an excuse to dismiss him and what he says.  People might not like having to play nice to get what they want, but it remains the only way that works when you do not wield significant leverage. If stubbornness, spite, resentment, or whatever else prevent you from resisting the temptation to be contentious, purposefully or not, then you have no one but yourself to blame when your ends ultimately fail.

And I would say the proof is in the pudding in this case, as virtually all discussions surrounding Kaepernick currently have nothing to do with his stance and everything to do with his unwillingness to stand.  The message is already lost in the hoopla surrounding the act, which is precisely why this was a foolish move insofar as it relates to achieving his professed ends.

UPDATE (1 September 2016):  Over the last few weeks, the quarterback was also allegedly spotted wearing socks at practice with pigs’ heads wearing police caps.  Does anyone really believe these kinds of displays are in any way constructive or likely to bring people from different sides together?

Though a small thing in the big picture, this sort of exhibit demonstrates to me that Kaepernick really has no interest in a uniting approach to society’s ills, choosing instead to use perceived injustices – real or not – to justify the same kind of prejudice he publicly decries and engaging in juvenilely divisive behaviors.  That, or he actually has good intentions but very poor judgment.  Either way, his approach is more likely to worsen the divide instead of bridge it.  We have seen over the last eight years (at least) just how worse such divides can grow when approached from an accusatory, contentious angle.

UPDATE (5 September 2016):  Now it appears that President Obama is (incorrectly) weighing in on Mr. Kaepernick “exercising his constitutional right” to not stand for the anthem prior to NFL games.  This is not a surprising opinion from the so-called “constitutional scholar,” as the president has demonstrated repeatedly that he either a) has no idea what the Constitution actually says (like most Americans), or b) he pays zero heed to what it says in the pursuit of his own (incorrect) opinions and (illegal) policies (or both).  Mr. President, Kaepernick’s choice here – right, wrong, or indifferent – is not an exercise of any constitutional right and a real constitutional scholar would understand that and make clear the very real and relevant contextual distinctions.



  1. Originally, the First Amendment was only prohibitive to the federal government even. However, following the post-Civil War Reconstruction Era, the Fourteenth Amendment generally serves to incorporate the First Amendment (as well as others) to the various States.

, , ,

  1. Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: