Holiday Resistance Brief: Protesting During the National Anthem and Why the NFL May Be a Controversial Holiday Topic This Year

ICYMI: The NFL has been a controversial topic as of late. Here’s your resistance brief to help you get through the holiday season with relatives who, well, don’t understand the issues.

You can download the full brief here — or you can download a one page brief here. If you think this will be a topic of conversation over turkey, we suggest saving it as your lock screen or as a web app on the main page of your phone!

Be kind, rewind. What happened?

During the 2016–2017 NFL season, Colin Kaepernick began sitting out the national anthem, and then kneeling while everyone else stood, to protest the oppression of people of color in the United States. In the beginning, his protests did not gain much media attention. He would simply sit on the bench during the National Anthem. He received some backlash for sitting, as that was considered disrespectful to the symbolism of the American flag. Kaepernick consulted veterans on how to show respect for the flag while also protesting, which is why he began to kneel instead of sit out the anthem. He was very aware of his actions, and he continued his protests throughout the season.

Other football players joined Kaepernick’s protest during the 2016–2017 season, kneeling in solidarity and to protest the same issue — police brutality. Eric Reid, a fellow 49er, joined Kaepernick in kneeling during the anthem on September 1, 2016. That same day, Jeremy Lane of the Seattle Seahawks sat out the anthem. He was the first non-teammate of Kaepernick’s to join the protest. On September 9, 2016, Brandon Marshall, a linebacker for the Denver Broncos, took a knee during the anthem. He was the first to do so at a NFL regular season opening game. When asked why he did it, Marshall responded “I’m not against the military. I’m not against the police or America, I’m against social injustice.”

As the season went on, more players protested along with Kaepernick:

• Arian Foster, Michael Thomas, Kenny Stills, and Jelani Jenkis of the Miami Dolphins knelt. When asked about his protest, Arian Foster said “don’t let the love for a symbol overrule the love for your fellow human.”
• The entire Seahawks team linked arms during the anthem on September 11, 2016.
• The players of the Kansas Chiefs also linked arms, with Marcus Peters holding up a fist.
• Martellus Bennett and Devin McCourty of the New England Patriots raised fists in solidarity.
• Eric Reid again knelt with Kaepernick while teammates Eli Harold and Antoine Bethea raised their fists. Rams players Robert Quinn and Kenny Britt also held fists in the air.
• As the season went on, there were continued protests from players who had done it in the previous weeks and new ones: Antoine Bethea, Eli Harold, Jaquiski Tartt, Rashard Robinson, Arian Foster, Michael Thomas, Kenny Stills Steven Means, Ron Brooks, Marcus Smith, and Duane Brown.

It is also important to note that many other athletes across the sports realm participated in this protest during the 2016–2017 season: Megan Rapinoe of the USA Women’s Soccer team; a Howard University cheerleader; the entire Indiana Fever team; two Phoenix Mercury players; the Rockets, Knicks, and Celtics; and a plethora of high school and college football teams and marching bands. A handful of other players gave public statements of support towards Kaepernick’s protest, but said they themselves would not kneel.

When Kaepernick began his protest, the 49ners, the team Kaepernick played for, released the following statement: “The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”

Arguably, it’s a great statement. It appears that the 49ers supported Kaepernick’s protest — and they definitely didn’t stop him from protesting during the National Anthem. However, after the 206–2017 season, Kaepernick was left without a contract for the upcoming season, likely because of how outspoken he was politically and how that collided with football. Yes, it’s strange he didn’t get an offer from a team this season — he’s a damn good quarterback. In October 2018, Kaepernick filed a grievance against the NFL, arguing that all thirty-two teams colluded against him in order to keep him out of the league this season.

Okay, but something happened in the last few months, right?

Yes. Donald Trump tweeted grossly inappropriate, derogatory comments about NFL players — and they responded by continuing Kaepernick’s protest and knelt during the national anthem. Many players and teams knelt, locked arms, or sat out of the national anthem entirely the first weekend after Trump’s tweets. Some players have continued the protest, others have resumed “normal conduct.”

However, this action brought light on not only the protest of the NFL players, but that over half a dozen NFL team owners contributed to Trump’s campaign and/or inauguration. NFL players have been told not to be political, to let “football be football,” but their team’s owner can demonstrate their politics with their money and face no repercussions the way the players do. Some players spoke out about this, including Michael Thomas of the Miami Dolphins who tweeted “Continue to use your voices and your platforms for racial equality and to stop injustices in our communities. This is bigger than us!!!”

Despite the illusion of the protests dying down, Donald Trump continues to tweet about the NFL, attempting to antagonize players and fans alike.

What exactly was Kaepernick protesting?

In Kaepernick’s own words, he 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.”

Police brutality is not new to American history. It’s been around for a long time and there is a demonstrated racial disparity in how police use force in the United States. If you are black, are much more likely to be shot by the police than your white peers — 2.5 times more likely, in fact. According to Vox, 31% of police killing victims in 2012 were black — and this data is not even complete because it’s made up of voluntary reports from police departments and agencies in the United States. The rate at which black people are killed by police is disproportionate to the population, achieving the highest ratio between population and people killed by the police.

The Guardian also published statistics that show the racial divide of police brutality. In 2015, racial minorities made up approximately 37.4% of the population — and 46.6% of armed and unarmed victims in police killings. Racial minorities made up 62.7% of unarmed people killed by police overall. In 2016, at least 233 black Americans were shot and killed by police.

Black people are also more likely to be arrested for drugs and make up a significant portion of the prison population.

America has the most aggressive police force in the world — and as result, has the highest rate of police shooting and killing the citizens of their country, the same people they are supposed to be protecting. In 2016, there were at least 458 deaths from police shootings in the United States. There were 8 in Germany and 0 in Japan and Great Britain. Research suggests that the higher rate of violence is a result of gun ownership. Americans own the most guns of any other country — and research shows that more guns lead to more gun violence.

It doesn’t help that the federal government has assisted in the militarization of police forces around the country. Local police forces have been given military grade equipment (with little to no training) to help with the “war on drugs” and the “war on terror.” The equipment cost local police forces almost nothing thanks to the 1033 program, which allows for the transfer of surplus military equipment from the Department of Defense to police forces. After the police in Ferguson, MO used military-grade equipment on peaceful protesters after the killing of Michael Brown, the Obama administration imposed restrictions on this passing of equipment — including banning certain weapons. (Trump then lessened the restrictions when he took office.) But obviously, this is not enough.

William Pretzer, a senior history curator at the Smithsonian National Museum of African American History and Culture, recently said “what we see [today] is a continuation of an unequal relationship that has been exacerbated, made worse if you will, by the militarization and the increase in fire power of police forces around the country.”

Kaepernick was protesting all of the above and more. He was protesting police brutality and the institutional, systemic racism that permeates American society. He took a stand for his beliefs and what is just for our country — and it has caught national attention.

Okay, but what about how he protested? Is it constitutional?

Yes, kneeling during the national anthem is constitutional. It is protected under the First Amendment’s freedom of speech and freedom of assembly — and the penumbra (or rights derived from other rights in the Bill of Rights) rights determined by the Supreme Court. A handful of older Supreme Court Cases — Gitlow v. New York, Brandreth v. Lance, Respublica v. Montgomery, and People v. Croswell — laid the foundation for the concept of “speech plus conduct,” protecting the freedom of expression, even though it is not explicitly stated in the Bill of Rights.

In the twentieth century, the Supreme Court has upheld the protection of “speech plus conduct” through United States v. O’Brien, Tinker v. Des Moines, and Spencer v. Washington. These three cases evaluate symbolic speech in connection to protest in America. O’Brien dealt with the constitutionality of burning your draft card (in this case, the government interest of fighting a war superseded any First Amendment claim). Tinker found that wearing armbands in protest of the Vietnam War was protected speech as the issue cited was with the armbands, not the content of the protest. In Spencer, the Court found that you could modify an American flag if your message was clearly communicated. Huzzah, symbolic speech is constitutional.

Two cases arose in the twentieth century that specifically dealt with flag desecration: Street v. New York and Texas v. Johnson. In Street, a veteran was indicted for burning an American flag in protest of the death of James Meredith’s, a civil rights activist. The Court found that the government did not have a sufficient interest in the burning of the flag in these circumstances, and therefore he was wrongly indicted. Johnson looks at the burning of the American flag for political protest. The Court found that the First Amendment protects conduct and determined the message (anti-Reagan sentiments) was clearly communicated through the burning of the flag — and the Court determined that the state government did not have the power to designate symbols, as they cannot determine that the people cannot disagree with them. Huzzah, symbolic speech against the American flag is constitutional.

What does all this mean? It means you can protest the American flag, the national anthem, any symbol of America. Hell, you can protest AMERICA if you so choose. So long as your message is clear and you are not harming another human being, you have symbolic speech. This makes Kaepernick’s protest constitutional and a valid method of protest. As a reminder, protests are supposed to make you uncomfortable and question the status quo.

Want to read more about this? Click here to read my detailed argument in favor of protesting American symbols.

Great, but what will my NFL-loving uncle say?

Well, there are a handful of things your relatives could say about this — and some potential responses for you to use in return! We used “NFL-loving uncle” here, but any relative will suffice.

NFL-loving uncle: Can we just leave politics off the football field?
YOU, Option 1: Sure, once the team owners stop demonstrating their political allegiance monetarily — or writing letters to Congress on team letterhead recommending the confirmation of Trump’s nominees.
YOU, Option 2: It’s hard to keep politics off the football field when the players are protesting systematic racism… and the NFL is overwhelmingly made up of black men. Over 66% of players are black! If you want to keep politics off the field, there won’t be a field to watch.
YOU, Option 3: Sure, as soon as Donald Trump stops tweeting.

NFL-loving uncle: Protesting the national anthem is unconstitutional! Trump is right, they should be removed from the teams.
YOU: Actually, protesting the national anthem, and any other American symbol, is constitutional! It’s covered by the First Amendment’s protection of freedom of express or symbolic speech. “Speech” can be more than just words, it can also be actions!

NFL-loving uncle: These people kneeling during the national anthem is disrespectful to our troops!
YOU: Actually, Colin Kaepernick consulted with veterans about his protest. He started the protest sitting and the veterans actually said he should kneel instead, as that still shows respect for the flag. When a player is injured, you’re supposed to kneel to show respect to them in their time of need. Well, our country is in need and the players kneeling during the anthem are showing respect to it through their protest.

NFL-loving uncle: Their reason for protesting is dumb — police brutality is not a problem in America! We’re the greatest country!
YOU, Option 1: Actually, it’s been a problem since our country was founded, but it has gotten worse since the federal government has allowed local police forces to have military-grade weapons! In 2016, at least 233 black people were shot and killed by police.
YOU, Option 2: *throw an American history book at them*

TALKING POINTS

• Colin Kaepernick began his protest during the 2016–2017 NFL season. He started out sitting, consulted with some veterans, and altered his protest to kneeling during the national anthem. He was protesting police brutality in America.
• During the 2016–2017 NFL season, a number of other NFL players joined Kaepernick’s protest. While it gained media attention at the time, it was largely forgotten about until Trump started tweeting about the protests in the beginning of the 2017–2018 season.
• In September 2017, there was a massive kneeling/locking arms/sitting out the national anthem protest in response to Donald Trump’s tweets. The media called the protest a reaction to Donald Trump, and to some it may have been. However, the intent was to carry on Kaepernick’s protest of police brutality, which disproportionately impacts black people.
• Police brutality is a problem in America, and it has been since our founding. Black Americans are 2.5 times more likely to be shot by the police alone. In 2016, 233+ black people were shot and killed by the police. While more white people are killed by police in a given year (per statistics, but those are fuzzy in the first place), the *proportion* of killings of black Americans is what’s astounding.
• Kaepernick’s protest is constitutional! It’s covered by the First Amendment’s protection of freedom of speech and freedom of expression. Case law supports “symbolic” or “conduct” speech, which is what a demonstration and protest like this is.
• It’s not disrespectful to the flag, per veterans. It’s a gesture showing support.
• Protests are supposed to make you uncomfortable. They’re supposed to make you think and reevaluate the status quo.