President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment. A few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.
The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.
The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.
The optimal content of social norms cannot be decided by First Amendment case law. It is instead a question of how private ordering can make maximize the benefits of various private social spheres. For instance, universities should abide by free speech norms, because a core purpose of the university is to promote vigorous debate about the world, including our political and policy world. Professional sports and their opening ceremonies do not share this core purpose. Indeed, such protests are in some tension with a secondary purpose of sports– to create social unity (or at least local unity, given that most sports teams are local in nature). A free society needs both unity and debate and thus benefits from distinctive social spheres that contribute to each social virtue.
Moreover, in a sense Kaepernick is a free rider. No one would pay much attention to his views if he wrote an op-ed. He is not an expert on any aspect of social policy nor has he earned a reputation for special social wisdom. He is instead using a tradition built up over decades for other reasons to give himself a platform. And that tradition of respect and unity at the beginning of sport contests would dissolve if many others followed his lead and used this time to press their own disparate political complaints.
We are at an odd time in history. Many of the same people who are willing to erode free speech norms on campus where they belong want to entertain them at opening ceremonies where they do not seem appropriate.