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© Photo by Mark Cunningham/MLB Photos via Getty Images

In a demure little fur hat and with a case of nerves, Houston sang the national anthem at a Nets-Lakers game in New Jersey early in Kareem Abdul-Jabbar’s 1988-89 retirement season.

In the wake of the murder of George Floyd by police officer Derek Chauvin, MLB players have once again begun kneeling during the national anthem to protest police brutality towards Black Americans. During Tuesday’s scrimmages, Gabe Kapler became the first MLB manager to join the protests.

It’s worth noting that MLB players have a long history of protesting injustices in America using the national anthem or flag. Years before Colin Kaepernick’s brave stand in the NFL, Carlos Delgadoprotested the Iraq War and the United States illegally testing munitions on the people of his home island of Puerto Rico by refusing to stand for “God Bless America”. Decades before Delgado, Jackie Robinson, too, did not stand for the national anthem, writing that “I cannot stand and sing the anthem. I cannot salute the flag; I know that I am a black man in a white world.”

This has prompted a dismissive response from President Donald Trump.

Looking forward to live sports, but any time I witness a player kneeling during the National Anthem, a sign of great disrespect for our Country and our Flag, the game is over for me!

— Donald J. Trump (@realDonaldTrump) July 21, 2020

Trump is wrong, though, and not solely on the morality of the issue. Back in 1989, the U.S. Supreme Court ruled in Texas v. Johnson that disrespecting the flag of the United States - whatever that means - is protected speech under the First Amendment.

Our precedents . . . recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” and that the Government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Texas v. Johnson was what we now call the “flag-burning case.”

Then there’s the Flag Code, often invoked by people who argue that kneeling for the national anthem or the pledge of allegiance is a sign of disrespect. But the Flag Code bans other things as well.

  • If you’ve ever worn the flag or a stars-and-stripes pattern on clothing, you violate Section 8(d) of the Flag Code.
  • The “thin blue line” or “Blue Lives Matter” flag violates section 8(g) of the Flag Code.
  • Flying the American flag during a thunderstorm violates Section 6(c) of the Flag Code.
  • Flying the American flag at night violates Section 6(a) of the Flag Code, unless it is illuminated with a spotlight.
  • On Tuesday, Dallas Mavericks owner Mark Cuban confirmed his team had stopped playing the national anthem before home games. Fans were allowed at Dallas’ American Airlines Center for the first.
  • Protests during the playing of the United States national anthem have had many causes, including civil rights, anti-conscription and anti-war, anti-nationalism, and religious reservations. Such protests have occurred since at least the 1890s, well before ' The Star-Spangled Banner ' was adopted and resolved by Congress as the official national.

In fact, the Blue Lives Matter flag and wearing this shirt are both greater violations of the Flag Code than kneeling during the National Anthem. If those are protected speech, so is kneeling during the national anthem. That’s why conservative Justice Antonin Scalia joined in the majority opinion in Texas v. Johnson that the ceremonial nature of the flag is exactly why all forms of speech concerning it must be protected.

If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol — as a substitute for the written or spoken word or a “short cut from mind to mind” — only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.

(Yes, that is correct: under the Flag Code, the appropriate way to dispose of a damaged flag in the United States is by burning it.) In short, the Supreme Court has unequivocally held that protesting a flag does not desecrate it, for the symbolism is honored equally both by supporting it and protesting it. Putting a blue line across the flag to defend police officers, however, does desecrate it, though that is also protected speech.

Maybe you think Texas v. Johnson was wrongly decided, but it frankly wasn’t. Years earlier, in 1974, the U.S. Supreme Court explained in a case called Smith v., Goguen why contempt for the American flag cannot and should not be criminalized:

[A] war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted . . . . Yet a member of the American Legion who, caught in the same rainstorm while returning from an ‘America — Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.

All of which is to say that Trump is absolutely, categorically wrong when he says that kneeling for the national anthem disrespects the American flag. But what of the country? Does kneeling for the American flag disrespect the United States?

Well...no. The U.S. Supreme Court in New York Times v. Sullivan expressly rejected the proposition that disrespect towards the United States or its government, in any nonviolent form, can be restrained.

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

And a few years later, the Court added that even advocacy of unlawful acts against the government can be protected speech. In other words, the First Amendment categorically protects the right of MLB players to protest, and further states that such protest respects, rather than desecrates, the American flag and government.

On the other hand, Trump’s proclamation against kneeling for the anthem is legally problematic in the extreme. Justice Robert Jackson wrote for the majority in West Virginia State Board of Education v. Barnette that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That is, however, exactly what Trump purported to do via his tweet.

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And, as I’ve written before, protests are certainly necessary on this issue. A police officer kills an American civilian every seven hours, and 84% of officers have said they witnessed a colleague use excessive force. Police officers continue to regularly use tear gas on protesters, despite tear gas being a chemical weapon banned in war by international law. In other words, every time police use tear gas, they are committing a war crime.

One police department in Skokie, Illinois, threatened to refuse to respond to violence at a school unless they were allowed to have a physical presence in the school at all hours, despite multiple reports of racial profiling and attacks by the police on students of color. Breonna Taylor, an EMT, was shot by police five times whilst she was sleeping in her own bed in her own home, yet officers did not request a paramedic or perform CPR for over 20 minutes whilst she bled to death; none of the officers involved have been charged with a crime. Police have repeatedly driven vehicles into crowds of protesters, killing and maiming dozens and drawing international condemnation.

What MLB players are doing by kneeling for the national anthem is a nonviolent way of drawing attention to the failings of our government. The police are an armed government paramilitary in the United States. If we saw images of the violence perpetrated by law enforcement against unarmed civilians in any other country, we’d be advocating for that government to be replaced. But here, we are taught that to oppose the use of force by our own government is unpatriotic. Right now, players like Amir Garrett and Pablo Sandoval and Joey Votto and Jack Flaherty and Phillip Ervin are heroes, snapping us out of that complacency and reminding us that people should not be afraid of their governments. There is nothing so precious to liberty as what they do now.

Sheryl Ring is a litigation attorney in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author’s. This post is intended for informational purposes only and is not intended as legal advice.

Gold medallist Tommie Smith (center) and bronze medalist John Carlos (right) showing the raised fist on the podium after the 200 m race at the 1968 Summer Olympics; both wear Olympic Project for Human Rights badges. Peter Norman (silver medalist, left) from Australia also wears an OPHR badge in solidarity with Smith and Carlos.

Protests during the playing of the United States national anthem have had many causes, including civil rights, anti-conscription and anti-war, anti-nationalism, and religious reservations. Such protests have occurred since at least the 1890s, well before 'The Star-Spangled Banner' was adopted and resolved by Congress as the official national anthem in 1916 and 1931, respectively. Earlier protests typically took place during the performance of various unofficial national anthems, including 'My Country, 'Tis of Thee' and 'Hail, Columbia'. These demonstrations include refusal to stand or face the American flag during the playing of the Anthem.

Early examples[edit]

In 1892, three men, including a friend of Ida B. Wells, were lynched by a white mob while in police custody in Memphis, Tennessee, in an event known as the People's Grocery lynching. This act sparked a national outcry. At a meeting of one thousand people at Bethel A. M. E. Church, Reverend W. Gaines called for the crowd to sing the then de facto national anthem, 'My Country, 'Tis of Thee,' but the call was refused, one member of the audience declaring, 'I don't want to sing that song until this country is what it claims to be, 'sweet land of liberty'.[1][2] The Reverend substituted the Civil War-era song about the abolitionist martyr, 'John Brown's Body'. Well's husband, Ferdinand L. Barnett, closed the meeting appealing for calm and a careful response, but also expressing great frustration and concern that the violence against blacks may one day lead to reprisals.[1][2]

Early 20th century[edit]

Emma Goldman was imprisoned for two years after opposing conscription in the US during World War I.

Refusal to stand during the national anthem became a widespread form of protest during World War I. In some cases, this was related to protest of conscription.[3] Newspapers at the time associated the protests with support for socialism,[4][5]Bolshevism,[6] or communism. In one case, supporters of anarchistEmma Goldman refused to stand for the national anthem.[7] The act of protest was very controversial, and many people were highly offended, so that even accidentally remaining seated could result in violence.[8]

Protests during the anthem continued after World War I. For example, during the build-up towards World War II, a group of students at Haverford College in Philadelphia refused to stand because they felt the custom was leading to 'rabid nationalism'.[9] In 1943 in Arizona, a federal judge ruled that members of Jehovah's Witnesses cannot be suspended from school for refusing to stand during the national anthem.[10]

1960s and 1970s[edit]

Jane Fonda at an anti-Vietnam War conference in The Hague in January 1975

In the 1960s, refusal to stand during the anthem took place for a number of reasons. In the late 1960s, the protest became increasingly common among athletes and at schools, both as a protest of the Vietnam War and as a protest of nationalism. In December 1968, Chris Wood, co-captain of the Adelbert College basketball team was removed from the team for not standing, saying, 'We believe in the fellowship of man. We don't believe in nationalism.'[11] Five white high school students were suspended in Cumberland, Maryland in February 1970.[12] A federal judge Joseph P. Kinneary ordered reinstatement of a pair of students in Columbus, Ohio, saying that forcing anyone to participate in 'symbolic patriotic ceremonies' against their will was a violation of the First Amendment to the US Constitution.[13] In November 1970, Kaye Stevens refused to sing the national anthem before a NFL game between the Pittsburgh Steelers and Kansas City Chiefs, although she had sung the previous week when the Steelers played the New York Jets. She said she was protesting the Steelers planned expenditure of $37 million on the new Three Rivers Stadium when local officials were underfunding treatment for drug users.[14]

From 1968 onwards, Jimi Hendrix performed an instrumental version using feedback, distortion and other effects to deconstruct the music with the sonic images of rockets and bombs. Common interpretations link this to a protest against the Vietnam War, as opposed to Hendrix's own explanation: 'We're all Americans ... it was like 'Go America!' ... We play it the way the air is in America today. The air is slightly static, see'.[15]

Donald Sutherland, Gary Goodrow, Peter Boyle, and Jane Fonda developed an anti-war comedy show which featured a skit about people refusing to stand during the anthem which toured about 20 cities in 1971.[16]

Civil rights movement[edit]

At the same time, Civil Rights became an important cause which led to anthem protests. The 1968 Olympics Black Power salute was a political demonstration conducted by African-American athletes Tommie Smith and John Carlos during their medal ceremony at the 1968 Summer Olympics in the Olympic Stadium in Mexico City. After having won gold and bronze medals, respectively, in the 200 meter running event, they turned on the podium to face their flags, and to hear the American national anthem, 'The Star-Spangled Banner'. Each athlete raised a black-gloved fist, and kept them raised until the anthem had finished. In addition, Smith, Carlos, and Australian silver medalist Peter Norman all wore human rights badges on their jackets. In his autobiography, Silent Gesture, Smith stated that the gesture was not a 'Black Power' salute, but a 'human rights salute'. The event is regarded as one of the most overtly political statements in the history of the modern Olympic Games.[17][18]

In 1969, University of Wyoming coach Lloyd Eaton dismissed 14 black football players who requested to wear black armbands to protest the racial slurs they faced during games, particularly against BYU. When the two teams played in 1971, about 50 students at UW refused to stand during the national anthem and wore black armbands during the game.[19] Another place where African Americans refused to stand during the anthem in 1971 was at Northern Illinois University basketball games, which led to widespread criticism.[20]

The protests became widespread, and in some cases, arrangements were made for the anthem to be played before athletes left the locker room. Lew Alcindor, later known as Kareem Abdul-Jabbar, began to refuse to stand at UCLA basketball games, and in response the anthem was played before the players left the locker room in the UCLA-University of Washington game.[21] UCLA's coach John Wooden denied that Alcindor or any other UCLA player he coached had refused to stand for the anthem, while sometimes the anthem was played while the team was in the locker room or even during warm ups.[22] The same was done when the five starters of Florida State University's basketball team, all African American, played Tulane University in 1971 in New Orleans.[23]

Vincent Matthews in 1968

At the 1972 Summer Olympics, two American 400 m runners, Vincent Matthews (gold medalist) and Wayne Collett (silver medalist), staged a protest on the victory podium, talking to each other and failing to stand at attention during the medal ceremony.[24] They were banned by the IOC, as Tommie Smith and John Carlos had been in the 1968 Summer Olympics. Since John Smith had pulled a hamstring in the final and had been ruled unfit to run, the United States were forced to scratch from the 4×400 m relay.

Civil rights based protests continued into the late 1970s, In 1978, a student was barred from receiving his diploma in Dayton, Ohio for refusing to sing.[25]

Turn of the millennium[edit]

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On August 24, 1990, Irish pop singer Sinead O'Connor threatened to boycott her scheduled performance that night at the Garden State Arts Center in Holmdel Township, New Jersey, if the U.S. national anthem were played. In her own words, she explained,

Anthem

I sincerely harbor no disrespect for America or Americans, but I have a policy of not having any national anthems played before my concerts in any country, including my own, because they have nothing to do with music in general ... I am concerned though, because today, we're seeing other artists arrested at their own concerts ... There is a disturbing trend towards censorship of music and art in this country and people should be alarmed over that far more than my actions ...

The Center gave in to her demands, but not without controversy. Frank Sinatra criticized her the following evening while performing at the same venue, stating that he wished that he could 'kick her in the ass.' New York state Senator Nicholas Spano urged people to boycott O'Connor's subsequent show in Saratoga, saying 'I'm sure Ms. O'Connor would be the first to complain if someone tried to censor her performance, yet she is trying to censor the national anthem by refusing to perform where it is played.'[26]

In the NBA in 1996, Mahmoud Abdul-Rauf, guard for the Denver Nuggets, refused to stand during the anthem before games in protest of anti-Islamic rhetoric. He was suspended for his actions and received hostile responses and death threats.[27][28][29] It was noted at the same time that the Seattle SuperSonics’ Sam Perkins, a Jehovah's Witness, stood apart from his teammates during the national anthem. George Shinn, owner of the Charlotte Hornets, threatened to trade any player who refused to stand.[30][31] After his suspension, Abdul-Rauf stood, but with his head bowed in silent prayer.[32]

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In 2003, two women's basketball players, Toni Smith of Manhattanville College and Deidra Chatman of the University of Virginia, made headlines for refusing to face the flag during the national anthem. Chatman protested for one game in March 2003 due to her anti-war views in light of the then-ongoing tensions between the U.S. and Iraq.[33] Smith, who had been boycotting the anthem all season long before being finally noticed in February 2003, said that she was also protesting the United States' involvement in Iraq, as well as a growing disparity between the rich and the poor. During one of her team's games on February 23, 2003, a fan named Jerry Kiley, a self-described Vietnam veteran, ran onto the court and confronted her with an American flag, saying, 'She has not earned the right to disrespect the flag.'[34]

In 2004, Carlos Delgado of the Toronto Blue JaysMajor League Baseball team decided he would no longer stand during the song, 'God Bless America,' out of protest at America's wars in the Middle East.[31]

2016–present[edit]

Colin Kaepernick in 2013

During 2016, several professional athletes protested police brutality during the United States (U.S.) national anthem. The protests began in the National Football League (NFL) after San Francisco 49ersquarterback (QB) Colin Kaepernick sat during the anthem, as opposed to the tradition of standing, before his team's third preseason game of 2016. Kaepernick also sat during the first two preseason games, but he went unnoticed.[35] The protests have generated mixed reactions and have since spread to other U.S. sports leagues.

Stemming from the Kaepernick controversy, before the beginning of the 2016 World Cup of Hockey tournament in Toronto, Canada, Team USA coach John Tortorella told in an interview that if any one of his players were to sit out during the anthem, they would sit on the bench for the entire duration of the game.[36]

Before the NFL Buccaneer/Detroit game on Saturday, 12/26/2020, a number of players were kneeling during the National Anthem.Before three of the games on Sunday, 12/27/2020, the National Anthem was not broadcast.The National Anthem was not broadcast before the Monday night football game on 12/28/2020.

1/3/2021 - Packers/Bears - National Anthem not broadcast.
1/3/2021 - Broncos/Raiders - National Anthem not broadcast.
1/10/2021 - Bears/Saints - National Anthem not broadcast.
1/16/2021 - Packers/Rams - National Anthem not broadcast.
1/17/2021 - Saints/Buccaneers - National Anthem not broadcast.


References[edit]

  1. ^ ab'Not Their Country, The Decatur Herald (Decatur, Illinois) March 29, 1892, page 1'. The Decatur Herald. 1892-03-29. p. 1. Retrieved 2019-11-12.
  2. ^ ab'Wouldn't Sing America,' The Evening World (New York, New York) March 28, 1892, page 3'. The Evening World. 1892-03-28. p. 3. Retrieved 2019-11-12.
  3. ^'Clipped From The St. Louis Star and Times'. The St. Louis Star and Times. 1917-06-01. p. 3. Retrieved 2019-11-12.
  4. ^'Asked to Resign, The Los Angeles Times (Los Angeles, California) October 30, 1917, page 13'. The Los Angeles Times. 1917-10-30. p. 13. Retrieved 2019-11-12.
  5. ^'Clipped From The Oregon Daily Journal'. The Oregon Daily Journal. 1918-06-18. p. 4. Retrieved 2019-11-12.
  6. ^'Clipped From Harrisburg Telegraph'. Harrisburg Telegraph. 1918-12-09. p. 16. Retrieved 2019-11-12.
  7. ^'Reds Turned Out at Trial of Emma, The Sun (New York, New York) July 7, 1917, page 4'. The Sun. 1917-07-07. p. 4. Retrieved 2019-11-12.
  8. ^'Clipped From The St. Louis Star and Times'. The St. Louis Star and Times. 1917-12-10. p. 3. Retrieved 2019-11-12.
  9. ^'Clipped From Wilkes-Barre Times Leader, The Evening News'. Wilkes-Barre Times Leader, The Evening News. 1934-05-31. p. 21. Retrieved 2019-11-12.
  10. ^'Clipped From The San Bernardino County Sun'. The San Bernardino County Sun. 1963-08-30. p. 11. Retrieved 2019-11-12.
  11. ^'Clipped From El Paso Herald-Post'. El Paso Herald-Post. 1968-12-11. p. 24. Retrieved 2019-11-12.
  12. ^'Clipped From The Daily Courier'. The Daily Courier. 1970-02-25. p. 19. Retrieved 2019-11-12.
  13. ^'Anthem Protest Pair Reinstated, Lubbuck Avalanche-Journal (Lubbock, Texas) July 8, 1970, page 75'. Lubbock Avalanche-Journal. 1970-07-08. p. 75. Retrieved 2019-11-12.
  14. ^'Clipped From Traverse City Record-Eagle'. Traverse City Record-Eagle. 1970-11-14. p. 13. Retrieved 2019-11-12.
  15. ^Cross 2005, p. 271.
  16. ^'Anti-War Show has SRO Crowd, The Troy Record (Troy, New York) March 15, 1927, page 1'. The Troy Record. 1971-03-15. p. 1. Retrieved 2019-11-12.
  17. ^Lewis, Richard (8 October 2006). 'Caught in Time: Black Power salute, Mexico, 1968'. The Sunday Times. London. Retrieved 9 November 2008.
  18. ^Brown, DeNeen L. (2017-09-24). 'They didn't #TakeTheKnee: The Black Power protest salute that shook the world in 1968'. Washington Post. Retrieved 2019-11-12.
  19. ^Wyoming President Says Black 14 Issues Remain, The Daily Herald (Provo, Utah) October 21, 1971, page 19, accessed October 21, 2016 at https://www.newspapers.com/clip/7116500//
  20. ^Banning Anthem Discraceful Action, Belvidere Daily Republican (Belvidere, Illinois) December 20, 1971, page 6, accessed October 21, 2016 at https://www.newspapers.com/clip/7116534//
  21. ^Walt Brown, Athletes, Celebrities Personal Moments: The 60s and 70s, AuthorHouse, Mar 10, 2016
  22. ^Hy Gardner, 'Glad You Asked That,' The Indiannapolis Star, Dec. 06, 1969, 86 at https://www.newspapers.com/clip/62382199/alcindor-at-ucla-stand-for-anthem/
  23. ^FSU Starters Refuse to Stand for Anthem, Albuquerque Journal (Albuquerque, New Mexico) January 14, 1971, page 25, accessed October 21, 2016 at https://www.newspapers.com/clip/7116445//
  24. ^Schiller, K.; Young, C. (2010). The 1972 Munich Olympics and the Making of Modern Germany. Weimar and now. University of California Press. ISBN978-0-520-26213-3. Retrieved 2015-04-17.
  25. ^'Won't Sing Anthem, so no Diploma, The Pantagraph (Bloomington, Illinois) June 4, 1978, page 10'. The Pantagraph. 1978-06-04. p. 10. Retrieved 2019-11-12.
  26. ^'Legislator Urges Boycott Over Sinead's Anthem Ban'. Los Angeles Times. Times-Mirror Co. Times Wire Services. p. 10. Retrieved September 28, 2017.
  27. ^Home, Hostile Home, New York Times (August 8, 2013)
  28. ^Jim Hodges (March 13, 1996). 'NBA Sits Abdul-Rauf for Stance on Anthem'. The Los Angeles Times. Retrieved December 6, 2016.
  29. ^Jackson, Sarah J. Black Celebrity, Racial Politics, and the Press: Framing Dissent. Routledge, 2014. p117-118
  30. ^McCallum, Jack, 'Oh Say Should We Sing?'Sports Illustrated, March 25, 1996, accessed October 21, 2016.
  31. ^ abAbrams, Roger I. Playing Tough: The World of Sports and Politics. UPNE, 2013. p4
  32. ^Abrams 2014, p 125
  33. ^Reedy, Jim (March 4, 2003). 'U-Va. Protest Takes an About Face'. Washington Post. WP Company. Retrieved September 28, 2017.
  34. ^Pennington, Bill (February 26, 2003). 'Player's Protest Over the Flag Divides Fans'. New York Times. NY Times Company. Retrieved September 28, 2017.
  35. ^Sandritter, Mark (2016-09-11). 'A timeline of Colin Kaepernick's national anthem protest and the NFL players who joined him'. SB Nation. Retrieved 20 September 2016.
  36. ^'Tortorella 'will sit' any Team USA player who protests anthem - Sportsnet.ca'. Sportsnet.ca. Retrieved 2017-02-12.

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  • Cross, Charles R. (2005). Room Full of Mirrors: A Biography of Jimi Hendrix. Hyperion. ISBN978-0-7868-8841-2.

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