The Kaepernick Kneeling Epidemic

Colin Kaepernick initially started sitting during the National Anthem on August 14, 2016. However, Kaepernick went unnoticed. A reporter first noticed Kaepernick sitting in a preseason game on August 26. According to NFL.com, the reason that Kaepernick sat was because he didn’t “want to stand up to show pride in a flag for a country that oppresses black people and people of color.” Kaepernick protested to combat police brutality and racial inequality. To some people, this demonstration makes a lot of sense. Kaepernick is simply kneeling during an important American event to get his point across. However, it isn’t that simple. Kaepernick was under contract with a National Football League (NFL) team, which in turn means that he represents that team. The main question behind this controversy is whether NFL teams are allowed to not sign Kaepernick because of these demonstrations. The owners of the teams claim that they have not signed him due to his skill level, however it is clear that he has more talent than a lot of modern day NFL quarterbacks.

Kaepernick filed a grievance against the NFL’s collective bargaining agreement in October 2017. Him and his attorney claimed that the NFL was blacklisting him from the league due to his protests. Kaepernick believes that he is being singled out specifically, because there have been many other players that protested the anthem after him. Unlike Kaepernick, nearly all of these players still have jobs in the league. 

The lawsuit was settled in February of 2019 for a total of less than $10 million. This case goes to show that free speech is a crucial question in the United States. Colin Kaepernick was simply using his 1st Amendment rights by kneeling during the National Anthem, however, NFL teams believe that his protests injure business. In some sorts it did, but overall the 82 percent approval rating for the NFL stayed at that number. However, the approval rating of non-educated (no college education) white men went down by 6 percent, according to the same article. These statistics reflect that the protests hurt some demographics, but overall there is no change.

In my opinion, Kaepernick should be able to protest how he wants. I disagree with the idea of protesting during the game, however I believe that on his own time he should be able to protest however he wants. Yes, he represents his team on and off the field, but in-game is a lot different than off the field. Many more people associate Kaepernick with his team when he is in uniform, as opposed to when he is not. As stated previously, he was still under contract with his team and should therefore represent the team as they want him too. When it comes down to it, everyone has a different opinion on this issue. However, the NFL and its owners are the ones who decide who is on their roster.

Colin Kaepernick: Bringing Politics into Sports

Former San Francisco 49ers quarterback Colin Kaepernick made headlines in the sports world as well as outside of it when he began to sit down and then eventually kneel during the national anthem. This brought plenty of hate towards Kaepernick as well as support, but the hate is what makes his protest an issue in terms of freedom on expression.

After Kaepernick started his protest, the main problem people had with this protest was they saw it as a sign of disrespecting the flag and the soldiers who protect the United States of America.

This is not the first time a professional athlete has protested during the anthem, as in 1996 Mahmoud Abdul-Rauf did not stand for the national anthem. However, unlike Kaepernick or many other athletes who have done similar actions, Abdul-Rauf was suspended for a game by the National Basketball Association. Adbul-Rauf cited his religious beliefs for his refusal to stand and when he returned he opted to stand and pray during the anthem.

There does not seem to be any protection for professional athletes from getting suspended or even released from their team after protesting the anthem. Michael McClain, a professor of law at the University of New Hampshire, said that "a player's rights as an employee are determined by contract."

If a player were to be cut from their team following an anthem protest, McClain mentioned that a player could file a complain while also having the players' union back them up, but he also mentioned that the First Amendment only applies to government sanctions which could make things tricky.

So far, nothing has been truly resolved with the anthem protests as they do still continue, but do not seem to be shown as often or perhaps they are decreasing. One big reason for this could be the backlash and unwanted media attention it brings to the player's team.

Granted, any form of protest will have backlash, but organizations do not want to be in the spotlight for anything negative and these anthem protests do bring a negative light to the team.

Thus far there have been no suspensions or fines brought down by the National Football League for anthem protests. However, there could be some as law student Michael Schwartz said "the owners still have the option of making that decision."

Overall, the national anthem protests have showcased players using freedom of expression to try to make change in the world while also testing the limits of freedom of expression in today's world of sports.

Sources
-https://constitutioncenter.org/blog/the-first-amendment-and-restricting-professional-athlete-protests
-http://www.buffalo.edu/ubnow/campus.host.html/content/shared/university/news/ub-reporter-articles/stories/2017/10/dif-con-take-a-knee.detail.html

Dixie Chicks and George Bush

On March 10, 2003, while performing in London, Natalie Maines of the Dixie Chicks said that the group was "ashamed the President of the United States is from Texas." This singular quote sparked so much controversy that it nearly ended their whole career. The country group was Blacklisted throughout the country music industry. People in Texas burned their CDs and Merchandise. All of this over the lead vocalist of the group expressing her disapproval of the President of the United States. 

This quote also was connected to the group's disapproval of the United States Entering into war with Iraq after the terrorist attack on 9/11. With the rise of nationalism in the United States after 9/11, any criticism of the government seemed dangerously un-American. It was a wildly unpopular opinion at the time to hold, some went as far as to say it was treason. 

The mainstream country put an entire blockade on the Dixie Chicks music, taking them off the radio, destroying albums, and booing them at the Academy of Country Music Awards. The Dixie Chick, however, did not go silent. They instead went on to do some tour dates to raise money for Bush's opponent in the 2004 election and continued to make music. 

Natalie Maines quote never brought her into the Supreme Court, but it goes to show how unpopular speech and criticism of the government is still protected under the First Amendment. Censorship of unpopular opinions can be done without the Government, but it is not going to stop these thoughts from appearing. 

Another country music star, Jason Isabel, noted that the Dixie Chicks already had to fight for their place in popular country music, so the reason they were so quickly "cancelled" and blacklisted is because they are women. They had a very specific image of being women in country music, so when they stepped out of that image and criticized a man who was so celebrated by their country fan base, it was entirely outrageous. Even though male country artist like Eric Church, also openly criticize the NRA and the Republican Party. 

The Dixie Chick's stance about the Iraq war and the former president may have caused them to be blacklisted by mainstream country music outlets, but the group has continued to remain popular, relevant, and making powerful, female lead music. They went on to win a Grammy for their song Not Ready to Make Nice, which directly references this instance of speaking out against the Iraq war. 

Freedom of Speech Within the 21st Century Comedy Arena: Where is the Line Drawn?

Stand-up comedy was birthed in America. It took root in vaudeville theaters in the late nineteenth-century. As a new art form, performances relied heavily on bawdy humor accompanied by burlesque and comedic routines known as slapstick. The comedy arena as we know it today has significantly changed and comedic content, now in monologue form, celebrates a variety of styles, tackles controversial topics, and is critiqued by a world-wide audience.  

In its early days, stand-up comedy served one purpose: to make people laugh. In more recent years, comedians began taking risks exposing taboo subject matter that was commonly avoided in everyday conversation. Today’s stand-up is available across numerous mass-media platforms. While making people laugh is still the primary goal of comedians, the topic of free speech within the comedy arena has been heavily criticized by community censorship. According to the book, Mass Media Law: “Community censorship does not mean censorship or punishment imposed by the government, but rather the silencing of speech by private people or business entities, often as a result of pressure exerted by political activists, public interest groups, and economic stakeholders.” Private entertainment companies have recently started silencing and in some cases have completely dissociated themselves from comedians whose humor has failed to represent their values. 

There is no question that over time this art form has experienced exponential growth and audiences have become considerably more diverse. Entertainment is virtually at the fingertips of people who utilize both free and monetized media platforms. Comedians of the 21st century are arguably held to a different standard than those that came before them. It is important to recall that while freedom of speech protects comedians under public entities; their speech is not protected under the provision of privatized companies. This raises the question: are audiences too critical of today’s comedians?

Pete Davidson is a stand-up comedian and currently one of the youngest cast members on SNL. Infamous for “pushing the envelope” when it comes to controversial topics, Davidson has made divisive jokes about 9/11, suicide, mental health, and religion. Recently, after making an appearance at Binghamton University, Davidson announced that he would no longer be speaking on college campuses. This was prompted by the backlash he experienced after joking about his struggles with suicide. University student Sophie Miller, remarked: “By censoring Davidson on the topic of suicide, and judging others for relating or thinking there can be humor in dark things, you stigmatize the subject…There is a clear difference between using comedy to make social commentary and being offensive for the sake of being offensive.”

Another popular comedian who has enjoyed longevity in this industry recently sparked controversy for the release of his highly anticipated Netflix special: Dave Chappelle Sticks and Stones. Chappelle’s Special covered a wide range of what some would call politically charged and incorrect statements against certain groups, including the LGBTQ+ community. Many critics claim that Chapelle went too far, implying that his jokes were not merely jokes, rather he was asserting his personal agenda specifically against transgender people. Some, however, disagreed with this analysis. Journalist for the Washington News Post, Sonny Bunch said: “Once you lose the right to make anyone uncomfortable at any time for any reason, you’ve removed an arrow from the comedic quiver — rendering it a bit more difficult for us to see the world from a different, funnier perspective.” 

Should comedians like Davidson and Chappelle be forced to draw a line or should they be free in their comedic expression on whatever subject matter they choose? Instead of just a laugh, maybe today’s comics are aiming for more. If you believe that laughter is the best medicine, then you may consider that the art of stand-up comedy continues to evolve as comedians spoon-feed us small doses of controversial issues for the sake of pushing us outside of our comfort zones to stand on the line and contemplate issues we would otherwise, censor. 

Weighing Precedent and Principle: The Tension Between Legal and Ethical Decisions

Colorado State University (CSU) recently made national headlines after a picture of four white CSU students wearing blackface was posted to a personal social media account. Amid heavy backlash from fellow students and community members, CSU addressed the societal outrage and public outcry.

Citing the students’ First Amendment rights, CSU ultimately concluded, “personal social media accounts are not under our jurisdiction.” Despite recognizing the photo’s “deliberate racism” and contribution to a “deeply hostile” campus environment, CSU decided the students would not receive punishment for posting or posing in the photo.

Legal precedent grounds this decision, as can be seen in the 1969 U.S. Supreme Court ruling of Tinker v. Des Moines Independent Community School District. The landmark case ruled that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In other words, it is illegal for school officials to “censor student speech unless it disrupted the educational process.”

In July, a federal appeals court ruled that President Trump could not block Twitter accounts that produced content critical of the Trump Administration. The case and subsequent ruling have large effects on the application of the First Amendment pertaining to social media speech, something not addressed, or even foreseen, in the 1969 ruling.

The recent decision by CSU officials to absolve the students of punishment wearing blackface is largely grounded in precedent established by the two court cases described above. While judges rely on past court decisions to steer current jurisdiction, such conclusions also aid school officials in navigating freedom of speech issues with students. The CSU case is multi-layered, tapping into generalized freedom of speech issues with students at public institutions and free speech in the era of social media.

At the heart of the issue lies the tension between ethics and legality of speech. CSU admits to negotiating the strain of ethical and legal responsibilities when coming to this decision. As stated, "This recent post runs counter to our principles of community, but it does not violate any CSU rule or regulation, and the First Amendment prohibits the university from taking any punitive action against those in the photo.”

First and foremost, the distinction between ethical and lawful must be made: I find just because something is legal, does not mean it is ethical. On the other hand, an action deemed ethical might not be legal. This, however, does not imply that all laws are unethical. The two terms, although both important, are not synonymous, and involve varying degrees of application and interpretation.

In this instance, CSU clearly wrestles with the decision not to punish the students, basing justification on legal terms rather than ethical principles. This very tension is at the forefront of constitutional debate and happens to be the very reason why I declined a law school admission. I couldn’t seem to come to grips with the fact that legal does not always mean ethical. Upon reflection, though, I am not sure finding peace in this matter is a pre-requisite of lawyers.

Public outcry pressured CSU to address the blackface photo posted to social media, creating a form of community censorship. Upon review, the students were legally protected by the First Amendment and previous court rulings and interpretations of the constitution.

Although many are morally dissatisfied with CSU’s decision, it is grounded in legal precedent. Such tensions consume almost all legal decisions and should be considered accordingly when analyzing a rationale.

Banning Books

In 2014, the University of South Carolina Upstate and the College of Charleston faced backlash for including gay themed books to their freshman reading programs. The negative reactions were from the politicians in South Carolina. State representative, Garry Smith, proposed to cut approximately $70,000 from the universities after learning that no other book themes were offered to the incoming freshmen. 

The books that sparked this outrage were Fun Home by Alison Bechdel and Out Loud: The Best of Rainbow Radio” which included personal narratives. The two books focused on the author’s personal experiences of being gay and coming out. 

Smith insisted that he “understands diversity and academic freedom” but the assigned books “forced an agenda on teenagers and were a promotion of a lifestyle with no academic debate”. The legislators voted to cut $17,000 for the purchases of Out Loud and $52,000 for Fun Home. 

As a result, students of the universities began to protest Smith’s proposal. In addition to the protests, a campaign movement called “Writers Speaking Out” was started by Hub City Press, the publishers of Out Loud. Many authors visited the universities to speak on the issue. One of the authors present for the campaign was Alison Bechdel. 

This censorship issue reminded me of John Stuart Mill’s essay on liberty. Specifically, the statement: “minority opinions not being articulated”. The proposal to cut funding from the two universities due to the disapproval of their choice of book themes also silenced members of the LGBTQ+ community.

As mentioned earlier, Smith claims his outrage was due to the lack of other book options offered to the incoming freshman class. However, the University of Charleston provides a list of the previous books chosen for the reading program. Since 2002, there has only been one book option. 

The list includes the book Eating Animals by Jonathan Foer. In this book, the author provides insight about the morals and consequences of eating animals. If Smith’s main concern was about pushing different lifestyles on students, he would’ve spoken out about this book as well.

The Pentagon Papers and the Freedom of the Press

In 1971, the New York Times published the Pentagon Papers—a 7,000-page classified document containing a history of U.S and Vietnam relations. It was released after the United States had been at war in Vietnam for six long years. At this point, 58,000 Americans had lost their lives, and approval ratings were plummeting. 

Within the Pentagon Papers were accounts of major wartime incidents that had not been exposed in the mainstream media. They revealed that the Johnson administration had enlarged the scope of the war, all while telling Americans that it was coming to a close. According to a 1996 article by New York Times reporter R.W. Apple Jr., the Pentagon Papers “demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”

The Papers were leaked by Daniel Ellsberg. He had worked at the Pentagon as a member of the State Department since 1964 before living in Vietnam for two years. Upon his return to the United States, Ellsberg worked with Secretary of Defense Robert McNamara to write the Pentagon Papers. Meanwhile, he had begun to attend anti-war events, becoming increasingly opposed to the U.S. presence in Vietnam. 

Ellsberg passed his photocopies of the Papers on to New York Times correspondent Neil Sheehan. The Times published the first of the nine excerpts and commentaries on the front page on June 13. In response, a district court judge prohibited them from publishing more on behalf of the Nixon administration. According to the government, the leaking of this classified information “would cause irreparable injury to the defense interested of the United States.” 

The Supreme Court quickly took on the case, reviewing arguments on June 25 and 26, 1971. Essentially, they were tasked with determining whether or not prior restraint should be applied. Doing so would significantly limit the freedom of the press. There were several landmarks cases in the 20th century, however, that did impose exceptions to the First Amendment. The first was Schenck v. United States (1919) that established the “clear and present danger” rule. The second was Dennis v. United States (1951) that established the “grave and probably danger” rule. Ultimately, the Supreme Court decided that the release of the Pentagon Papers did not invoke clear, present, grave, or probably danger—upholding the New York Times’ right to publish. The decision was 6-3. 

Those concurring included Hugo Black, William O. Douglas, Potter Stewart, Byron K. White, and Thurgood Marshall. In his opinion, Justice Black wrote that “the press serves the governed, not the governors.” This implies that the primary duty of the press is to serve the people by delivering truth. Justice Stewart said that an “enlightened citizenry” maintains democracy. This is only possible if they are provided with all of the available information. Lastly, Justice Douglas claims that it is the press’ job to check the government. 

The dissenters included Chief Justice Warren Burger, John M. Harlan, and Harry A. Blackmun. They concluded that the proceedings were too hasty and that the New York Times did not take enough time to consider how their actions impact the American people. 

The New York Times Company vs. United States case maintained the First Amendment, upholding the freedom of the press. This freedom, however, is not unchecked and unlimited because the Espionage Act still stands. It helped establish the press as an active portion of the government.

Speakers with Radical Ideas on College Campuses

Should speakers with radical ideas be allowed to speak on college campuses? In my opinion, yes.

In September of 2016, conservative speaker Allen West triggered controversy on Saint Louis University's campus with the advertisement of his speaking event. West is a conservative activist and retired Army lieutenant colonel who was invited to SLU by the College Republicans, a club on campus.

In a flyer promoting the event, College Republicans used the term "radical Islam" to describe a topic West would cover during his speech. SLU administration promptly denied the use of the flyer as an advertisement around campus.

Dylan McCloskey, president of College Republicans, told SLU’s University News that “West’s agency expressed that they would like to brand the event with radical Islam. Radical Islam, referencing people who use the name of Islam to kill or hate others, which is not in any way synonymous with all Muslims,” he said.

While the advertisement was made by students, West defended their decision. He wrote on his website that he had been “censored” by the University and that his freedom of speech is being threatened due to the “liberal agenda” that SLU has. After the controversial statements made by West, it wasn’t long before SLU students demanded administration cancel his event.

West may have been unaware of the private status of the University, but he did formally accept the speaking engagement at SLU. This establishes that SLU is allowed to make decisions they see fit with their values. According to an official from the Trump administration, private universities have the ability to make their own rules regarding free speech, but must “comply with their stated institutional policies regarding free inquiry.” 

One of SLU’s institutional missions is to promote discussion of differing ideas in order to create tolerance among SLU students. This factored in to the decision made by SLU president Fred Pestello, P.h.D., to allow West to speak as scheduled. “As an institution of higher learning, SLU must resist the urge to suppress speech and instead expose all ideas and positions, provocative or pedestrian, to critical scrutiny,” he stated in an email to the SLU community.

The event was peacefully protested by students who disagreed with West. Most of these students came to the speaking event and performed a walkout when West entered the stage. Others stayed for the entire evening and asked him questions that were vetted by staff. West acknowledged the controversy in his speech, stating that he did not believe all muslims were evil, but that Islamic terrorists exist and pose a real threat. 

While I may not agree with his viewpoints, I do think he should be allowed to speak at SLU. As long as his speech is passable by SLU's standards, he had the right to be there. At the same time, SLU had the right to deny his controversial advertisement, as it did not align with their values, and SLU students had the right to peacefully protest the event, as it is protected by the First Amendment. 

As John Stuart Mill states, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” 

No matter how opposed an idea is, it can’t be silenced just because a community does not agree with it. Every person is and should be allowed to share their ideas, no matter how controversial -- whether that be to a huge audience, or a small auditorium filled with college students. 

The Freedom to Teach Religion?

The very first half of the first sentence in the First Amendment reads “Congress shall make no law respecting an establishment of religion…” yet, we have historically done the exact opposite of this statement and still do so today. For example, many private and public schools start out a school day by having students say the pledge of allegiance which reads “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under GOD, indivisible, with liberty and justice for all.” Despite the fact that America was founded by those actively participating in Catholicism, there is an argument to be made that the very fact that God is included in the pledge of allegiance is clearly singling out and respecting a particular religion.

Along these lines, a new controversy has developed. Asignificant majority of Americans, including public school teachers, believethat public schools should offer a comparative religion elective. Fifty-four percent of teachers think public schools should offer a Bible studies elective and 61 percent of parents agree, according to a 2019 PDK (Phi Delta Kappan) poll. Advocates of religious literacy can now lean on the law, different educators and public opinion for the right to teach religion at schools. In 1963, the U.S. Supreme Court affirmed that the study of religion is constitutional, as well on the basis that a “complete” education requires students to learn about religion and its relationship with social, political and cultural life.

However, there has been push back on whether religion classes should be implemented due to the fear of indoctrination. Thirty-eight percent of Americans are very or somewhat concerned that “Bible studies classes might improperly promote Judeo-Christian religious beliefs.” Twenty-seven percent of Americans are very or somewhat concerned such courses “might improperly encourage students to change their religious beliefs.”

In 1971, the Supreme Court Decided Lemon v. Kurtzman which created three tests for determining whether a particular government act or policy unconstitutionally promotes religion. The Lemon test says that in order to be constitutional, a policy must:

1.)   Have a non-religious purpose;

2.)   Not end up promoting or favoring any set of religious beliefs; and

3.)   Not overly involve the government with religion.

Applying the Lemon test to the teachings of religion in public schools narrows down what is acceptable and appropriate and what is not. For the purposes of teaching to engage students on what our founders believed in at the time that America was being discovered and how we see how we have implemented some of these principles and values into American society, the teaching of religion can be valuable. The moment that this is taken across that line to the point where it can influence the idle minded against their personal beliefs, religion class should not have a continuation in the agenda of public schools.