You can’t honor and respect the freedom the American flag represents by suppressing individual rights

There’s something important left out in all the furor over President Trump’s Twitter rants attacking professional athletes for “taking a knee” during the singing of the national anthem in silent protest against police brutality.

Although the president’s tweets have blasted these protests as disrespecting the flag and the anthem, his simplistic 140-character rants ignore what has set the United States apart from other countries—the fundamental right of Americans to freedom of speech, of religion, and of peaceful protest.

The president has publicly relished the idea of NFL bosses summarily firing anyone kneeling during the standard pre-game formalities, turning his reality television “you’re fired!” line into a proposed patriotic policy, apparently unaware of the irony of compelled compliance and suppression of individual freedom of peaceful protest during the singing of this ode to “the land of the free and the home of the brave.”

It’s one of those classic means-ends conflicts. Suppressing individual freedoms through coerced expressions of empty patriotism is not the path to a free society.

I think it’s helpful to recall and appreciate that at least since 1943, it has been the settled law of the land that we have a constitutional right to refuse to participate in saluting or  pledging allegiance to the flag, whether that abstention is meant as a form of protest or the result of religious beliefs.

The U.S. Supreme Court has consistently held that laws punishing those who misuse the flag during peaceful protests, whether by being made into clothing, adorned with peace symbols, or even burned, infringe on our most basic constitutional rights.

To be precise, constitutional amendments protecting individual rights prohibit certain uses of government powers. The First Amendment, for example, prohibits Congress from making laws limiting freedom of speech, of religion, or of the press. This requirement for government, or state, action, means that individual actions do not become unconstitutional unless they are supported or aided by government policies or actions.

It’s unclear whether firing or disciplining NFL players could still run afoul of constitutional rights. But even if not, prior court decisions have eloquently stated the many reasons that attempting to compel conformity of belief is both poor policy and most likely counterproductive.

Protecting rights during a world war

In early 1942, just a month after the Japanese bombing of Pearl Harbor, the U.S. was suddenly at war both in Europe and the Pacific, and a patriotic fervor was understandably spreading.

In West Virginia, the state Board of Education adopted a policy requiring all students and teachers to participate in saluting the flag and repeating the pledge of allegiance.

Failure to participate was to be considered “insubordination” and cause for expulsion from school. And because school attendance was mandatory, students who were expelled for refusing to salute the flag were considered “unlawfully absent” and considered delinquents, opening their parents or guardians to potential prosecution for contributing to their delinquency.

A legal challenge was filed by a group of Jehovah’s Witnesses, who argued their religion taught that God’s laws are superior to those of government, and that they could not salute the flag without violating their religious beliefs.

The case (West Virginia Board of Education v. Barnette) came to the U.S. Supreme Court for a hearing in March 1943, and the court’s decision came down on June 14, 1943.

Remember the context. Global war was raging on two fronts. Food was being rationed at home, and soldiers from every state in the country were being sent into battle.

But despite these conditions, the Supreme Court found compulsory participation in saluting the flag and pledging allegiance are contrary to the Constitution, and undermine our political freedoms and heritage.

“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,” the court ruled.

Failed Compulsory Patriotism

The justices recognized that attempts by authoritarian regimes to impose unity of thought have necessarily failed throughout history.

The court held: “Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

And, in my favorite sentence in the decision: “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”

The majority decision was written by Associate Justice Robert H. Jackson, who had served as Solicitor General and Attorney General before being appointed to the court, and who served as United States Chief Prosecutor at the Nuremberg war crimes trials after the end of WWII while on leave from the Supreme Court.

A concurring opinion by Justices Hugo Black and William O. Douglas underscored the point.

“Words uttered under coercion are proof of loyalty to nothing but self-interest,” they wrote.  “Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.”

Nearly a half-century later, the Supreme Court overturned the conviction of a man charged with burning the American flag during a protest by a small group outside the 1984 Republican National Convention in Dallas, Texas.

The case, Texas v. Johnson, was decided in 1989. In overturning the conviction of Gregory Lee Johnson, the court observed, citing the Barnett case, that “the right to differ is the centerpiece of our First Amendment freedoms.”

The court went on to explain its position in terms that continue to resound in today’s politically charged atmosphere.

“Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today.”

It’s a lesson that our president, and those that goad him on, should take to heart.