#TakeAKnee, Unity, and Public Versus Private Power

#TakeAKnee is a beautiful thing, all around.  Both the football and baseball players kneeling during the national anthem, and those criticizing the players, are all exercising their First Amendment rights.  The government cannot fine or jail anyone either for taking a knee in protest of police brutality against people of color or for denouncing Take A Knee as disrespectful to the flag and our military.  Our President is also empowered to express his opinions on the matter – as government speech – so long as his government does not threaten to jail or fine anyone participating in the protest movement started by former quarterback Colin Kaepernick.

The Take A Knee movement demonstrates why the First Amendment distributes power the way it does – preventing only government suppression of speech and allowing even a powerful entity like the NFL to suppress speech.  However, the movement also shows why one of its rallying cries, unity, is somewhat misplaced.  Indeed, what our free speech culture allows for is a diversity of opinions and approaches, even while we build community.


As a private entity, the NFL and its teams are legally permitted to fire players for their speech.  The First Amendment prevents only government censorship.  Indeed, many believe that Colin Kaepernick is unemployed due to his initiation of Take A Knee, which began when he sat during the national anthem.  Last year, Kaepernick said, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.  To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Although many might find horrifying the fact that an employer can force loyalty to the flag, Take A Knee demonstrates why the First Amendment distributes power correctly.  Only the government has a monopoly on the use of force that is strong enough to truly stifle dissent.  Private entities and employers can compete and experiment with different speech policies.  The NFL is permitting Take A Knee.  Many teams and players are participating, with some unified in sitting out during The Star-Spangled Banner.  Importantly, not all teams or even all players on particular teams are participating.  The Jets stood together for yesterday’s national anthem.  The Pittsburgh Steelers all remained in the locker room, except for army veteran Alejandro Villanueva.  All of these different configurations reinforce the idea of diversity and experimentation, made possible because the government and the law are uninvolved in these decisions.

A few team owners in NASCAR, by contrast, have condemned Take A Knee, with some owners stating that they will not allow drivers to protest during the national anthem.  (This is not an official NASCAR policy.)  The difference in approaches between the NFL and NASCAR again shows that private entities can experiment with different attitudes to certain types of speech, thus allowing for different expressions of values.  Indeed, the government cannot suppress NASCAR’s First Amendment rights by telling the institution that it must not fire protesting drivers.  The government must respect the speech and associational rights of individuals and entities, who share power- unequally, of course, but never with the magnitude of power possessed by the government.

Many of the football teams’ statements – both of teams protesting and those choosing to stand – use the term unity to describe how teams and players should react to Take A Knee and the President’s condemnation of the movement.  However, Take A Knee actually exemplifies the sentiment articulated in West Virginia State Board of Education v. Barnette, the case holding that public school students have a First Amendment right to refuse to stand for the Pledge of Allegiance.  As Justice Robert H. Jackson wrote, “[c}ompulsory unification of opinion achieves only the unanimity of the graveyard.”  We cannot, any of us, demand loyalty to any cause, any opinion, or any flag.  When politicians, sports leagues, or activists discuss solidarity and community values, and how much we all owe each other, they often forget the importance of individualism, of dissent, and of autonomy.  Take A Knee is a testament to both community and, more obviously, autonomy.

The Take A Knee movement, although expressing legitimate outrage at our country’s racial injustices, gives me even greater respect for the flag and the freedoms it bestows upon us.

One thought on “#TakeAKnee, Unity, and Public Versus Private Power”

  1. It is worth noting that while technically a private organization the NFL enjoys a special congressional exemption from antitrust law (https://en.wikipedia.org/wiki/Sports_Broadcasting_Act_of_1961 ). While there is always the danger that the power wielded by a natural monopoly exerciscing it’s own rights to free expression (imagine if facebook starts to host substantial aspects of our political debates, interaction with government etc..) I think that when there is specific government action to assist a private party in achieving control over a certain aspect of society we ought to be more cautious about simply dismissing their choices as private expression.

    No, I don’t believe that the NFL reaches that point with respect to speech generally. Even if the NFL spoke with one voice it hardly dominates the marketplace of ideas. However, given their government enabled monopsonoy as the only serious purchaser of football talent in the world I don’t think it would be unreasonable to lobby the federal government to pass a law conditioning the NFL’s antitrust exemptions on adopting an employment contract that forbid hiring/firing based on political expression.

    It doesn’t strike me as super important but if I could snap my fingers sure, seems reasonable.


Comments are closed.