Thoughts on the NFL National Anthem Controversy

Recently, the nation has been captivated by a controversy over NFL players kneeling during the national anthem in order to draw attention to racial inequality and police treatment of black men. It reached a climax after President Trump made inflammatory comments at a rally, calling on owners to fire players that kneel during the anthem. With the far reach of social media and the growing polarization of the nation, the issue has grown rapidly.

Many Americans have been offended by these protests and have responded with anger, refusing to watch or attend NFL games, some even going so far as to burn their NFL memorabilia.  A large portion of those expressing concern say that while the players have the right to free speech, they find it offensive because they see this as disrespectful to the sacrifices made by so many Americans in securing and defending our freedom.

The response from those Americans defending the protesters has been to claim this as a question of free speech, protected by the 1st Amendment. They also point out that this is an effective way for these players to draw attention to an issue that is important to them. 

So, who is right?  Well, let's look at it point-by-point.

Q: Are the protests disrespectful to the legacy of so many fallen soldiers?  

A: Yes

The flag of the United States of America is an iconic symbol of our freedom. While unlikely to be by design, the red stripes remind many of the blood shed by Americans of every racial, ethnic, national, and religious background in establishing and defending this nation. Most Americans treasure the freedom we have, and many citizens of other nations long to live in this great country and enjoy that same freedom. One way we show respect for this nation is to stand at attention and face the flag, remove your hat and place your hand over your heart (or salute) when the Star Spangled Banner is played or sung. Kneeling, if you are able to stand, especially in a formal ceremony where the expectation is that all will stand, is unambiguously disrespectful.

Q: Are the players protected by the First Amendment in protesting this way?

A: Yes and No

Let's look at the text of the First Amendment to the U.S. Constitution:

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.

The statement "Congress shall make no law...abridging the freedom of speech" clearly means that in a criminal sense, the players have every legal right to protest this way.  Congress is not allowed to pass a law that would make this illegal. Most, if not all, states have similar protections in their constitutions.  So, yes, they are protected from legal prosecution.

However, while employees of public institutions have some constitutional protection here, private employers are not restricted in the same way. The exception is speech that is discriminatory as far as religion or national origin.^a  So,  no, they are not protected from being disciplined or fired for what they say.

Q: Should the owners fire the players that are protesting?

A: That depends

Here’s what the NFL's Game Operations Manual says on the subject:^b

The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses.

The guidelines say that "all players must be on the sideline for the National Anthem." That means that those teams that chose to stay in the locker room rather than on the sideline were in violation of this policy.  However, the guidelines add, "Failure to be on the field by the start of the National Anthem may result in discipline..." In other words, while it against the policy, it is not mandatory that the league or the team enforce the policy.

Further, the guidelines state the following: "During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking." That clearly sets the expectation, but not the requirement, that the players should stand respectfully, not kneel.

Finally, the guidelines clarify the reason for this policy as follows: "It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country." So, yes, the players, teams, and the league should have been expecting the response they got from the public.

The question, then, is not whether the owners must fire the players for violating the policy but whether they have a moral obligation to do so.

From a moral standpoint, most Americans still hold largely to historic Judeo-Christian values as well as varying degrees of patriotism. However, even with a largely common framework, it is not cut and dried.  Is there a moral compulsion to behave in a way commonly considered patriotic?  Can we even agree on whether it is more patriotic to stand for the national anthem out of respect versus using a the opportunity to raise awareness to a political issue?

For the sake of argument, let me look at this from a Christian perspective since many on both sides of the issue are Christians. Is there a Biblical command or principle to say that the right thing to do is for owners to fire players that show disrespect for the flag?   Certainly not directly, and I think not indirectly, either.

1 Peter 2:13-4 makes it clear that we should obey the laws:

Submit yourselves for the Lord’s sake to every human authority: whether to the emperor, as the supreme authority, or to governors, who are sent by him to punish those who do wrong and to commend those who do right.

However, we have already established that there is no legal compulsion to fire the players. Nor have the players broken the law.

Hebrews 13:17 similarly tells us to be respectful of those in authority:

Have confidence in your leaders and submit to their authority, because they keep watch over you as those who must give an account. Do this so that their work will be a joy, not a burden, for that would be of no benefit to you.

Even if we extend this command to apply to business leaders, the owners are only under authority of the league, and while the league has a policy regarding behavior during the playing of the national anthem, the league chose not to enforce the policy.

The owners, with a large financial stake in the success of the league, will look at this from a business perspective.  Most of the American people, and a high percentage of NFL fans, are patriotic and believe in showing respect during the national anthem. Punishing the players would be popular among many of the fans and might help avoid the lost revenue of declining sales and viewership.

However, as has been widely noted, 70% of the players in the NFL are black, and the issue of racial equality is very important to them.  The NFL Players Union has significant leverage with the league, and the owners know that the potential of a strike, even an unofficial one, would likely result in an even larger financial impact.

It's hard to say that the owners have a moral obligation to fire the players, and from a business perspective, it is not unreasonable for the owners to decide to allow the players to protest in this way. If they had stood on patriotic principle and fired the players involved, they likely would have taken a much bigger financial hit than they are currently facing due to protests.

Finally, what is more patriotic?  Showing respect for the flag, and by extension the sacrifices of people that made this country great, is certainly considered patriotic in this nation.  Freedom to speak openly in public about a politically controversial subject is certainly the intent behind the free speech clause of the 1st Amendment and so exercising that right could be indirectly considered patriotic.

My personal take on this is that these players have the ability to raise awareness to important social and political issues without showing disrespect by kneeling during the national anthem, and it would be more patriotic to find another platform.  At the same time, it should be quite obvious that the protests have drawn much more attention to the issues than likely would have been achieved otherwise, precisely because it is controversial.

As for the mass protests after President Trump's comments on the subject, it is not unreasonable to think that these players would want to show support for their teammates by showing solidarity.  They were clearly doing so in response to the president, and so the intention was not to show disrespect for the flag and what it represents. Their intention, I believe, was to make a statement to the president that the freedom represented by that flag allows them to freely protest in such a way, and that if he wants the owners to fire the offending players, they had better be prepared to fire every player in the league.

Q: So, what should we do?

A: Relax and act like responsible adults

We are fortunate to live a nation where we have the freedom to disagree over things like this without tearing the nation apart.  We have taken the principles behind the 1st Amendment as a fundamental part of what it means to be Americans, and so we treasure the right to speak freely (among other things) and by consensus have decided to apply it universally.  So, to be patriotic and support this form of protest does not have to be a contradiction.

Being able to protest in this way is a byproduct of the freedoms secured by the past and current sacrifices of many Americans of all backgrounds and beliefs, and showing respect to the flag during the national anthem is an important ritual in this country, especially at sporting events. We see sports as a way to get away from the troubles of daily life and come together for some fun and to engage friendly rivalries that don't end in casualties.  Especially after 9/11/01, feelings of patriotic unity during the playing of the national anthem at sporting events has become a brief escape from the political polarization in this country and a chance to stop being red or blue, black or white, conservative or liberal and just feel like Americans.