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Opinion | Barry P. McDonald

Barry P. McDonald: What the Supreme Court could teach the NFL

San Francisco 49ers safety Eric Reid joined former teammate Colin Kaepernick’s protest during the national anthem, pictured on Sept. 10, 2017.Marcio Jose Sanchez/Associated Press/File

The NFL has now capitulated to President Trump’s pressure and won’t allow its players to kneel during the national anthem to protest actual and alleged incidents of police brutality toward African-Americans.

If the government were to suppress political protest in this manner, it would of course be a blatant violation of the First Amendment. That amendment, however, only protects against government actions; as a private organization, the NFL is not subject to its requirements.

But despite the NFL’s immunity from free speech requirements, the league should learn from the playbook of history when it comes to governmental attempts to enforce a particular vision of patriotism. In 1940, in Minersville School District v. Gobitis, the US Supreme Court upheld a law requiring Jehovah’s Witnesses schoolchildren to salute the flag and say the pledge of allegiance, in violation of their religious beliefs.


That decision sparked a wave of persecution of Witnesses by Americans who believed they were acting unpatriotically. Just three years later, in West Virginia Board of Education v. Barnette, the court reversed itself. Justice Robert Jackson, FDR’s former attorney general, explained why: “As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be . . . . Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.”

He continued: “ [F]reedom 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.”

In the more modern case of Texas v. Johnson, the Court heeded Jackson’s admonition that true patriotism can only be fostered by respecting the freedom of others to disagree. Conservative stalwart Justice Antonin Scalia joined liberal icon William Brennan in explaining why laws banning the burning of the American flag are counterproductive to promoting patriotism: “Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”


They added: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

If some of the most respected jurists in our history understood that patriotism is damaged, rather than fostered, by stifling dissent, why can’t Trump and the NFL see this?

Moreover, an event that features players predominately from the African-American community is an especially powerful venue for protests against alleged police brutality toward African-Americans. And venues matter, as the Supreme Court recognized in City of Ladue v. Gilleo. In striking down a law that barred a woman from displaying an anti-Gulf War sign from her home, the court noted that closing off effective and powerful forums for dissent can be as damaging to expressive freedoms as suppressing the message itself.

Now, one could be a cynic and view the NFL’s new policy as designed less to promote patriotic ceremonies than to protect huge profits. But can anyone seriously contend that affording NFL fans a brief opportunity to reflect on vital issues of the day will detract from the gladiatorial display to follow?


Whatever its motive, however, the NFL should heed the wisdom of some of our most distinguished American jurists. Coerced patriotism is not patriotism at all. That virtue is generated by genuine feelings of shared values and commitments, and particularly America’s core commitment to free expression — even when, as Justice Jackson put it, that expression strikes at the “heart of the existing order.”

Barry P. McDonald is a professor of constitutional law at Pepperdine University in Malibu, CA.