For many who feel intimidated into silence in the public square there was a great cheer in hearing the president say “throw that son of a bitch off the field” for using the National Anthem in protest. But that comment and associated Tweets about specific athletes also caused a defensive reaction among many professional football players and other athletes to circle the wagons. The NFL and team owners, already suffering declining ratings at least in part related to the national anthem protests of last year saw the President’s comments, particularly calls for boycotting the NFL if they did not act on the issue, as a threat to their bottom line.
1. The National Anthem at Sporting Events
The customs that we pass down from generation to generation are part of the valuable traditions that underpin our culture. They help to form the common identity of a society. These traditions can be expressions of important values such as freedom, service, sacrifice and patriotism. Displaying the flag and playing the National Anthem at the start of sporting events is a longstanding tradition linked to patriotism and supporting the armed forces.
Written in 1814 by Francis Scott Key it was played at public events such as 4th of July parades and even some baseball games throughout the 19th century. In 1889 the U.S. Navy ordered that it be played at the raising of the flag. In 1916, it became somewhat of an unofficial national anthem when the military was ordered to play it all official ceremonies. Finally, in 1931 it was made the official National Anthem in law as 36 U.S. Code § 301 – requiring everyone to at least stand on its playing. This law enshrines the tradition of behavior for both military and civilians at the raising of the flag and the playing of the National Anthem. It is this tradition and law that was violated in the protests.
In 1918, at a Chicago Cubs and Boston Red Sox baseball game, the spontaneous action of a military member on one of the teams to the playing of the Star Spangled Banner during a 7th inning stretch sparked the crowd to begin singing. Shortly thereafter, this popular action became formalized throughout the league at opening day, national holidays, and during the World Series between World War I and World War II.
During World War II baseball teams began playing the National Anthem before every game as part of a patriotic expression in time of war and in support of those serving in the war. It remained so after the War and spread to all sports.
The playing of the National Anthem at the beginning of sporting events is an enduring tradition linked to national unity, patriotism, and support of the armed forces.
2. Protests during the National Anthem
During the 2016 National Football League season Colin Kaepernick, former San Francisco 49ers quarterback, began sitting during the playing of the National Anthem and in response to criticism began taking a knee. When asked on August 26, 2016 why he was doing this 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.”
Mr. Kaepernick did three things when he took this action: 1) he introduced politics into a pastime seen by many as an opportunity to escape the national political divisions, 2) he sullied a national tradition in selecting the National Anthem as the context of his protest, and 3) the basis of his protest is objectively debatable.
In taking this action and in making this statement Mr. Kaepernick took on a highly valued and long-standing tradition. No surprise that in some polls up to 72% of respondents expressed the opinion that Mr. Kaepernick’s actions were unpatriotic.
Mr. Kaepernick expresses opinions about oppression and systemic police murders of blacks and people of color with which many disagree that can be objectively debated. A full vetting and debate of those opinions has not occurred because open debate about racial issues is suppressed in attempts to avoid a sensitive issue and through intimidation of those who might express a view inconsistent with progressive narratives on race.
3. NFL and team owners failed to address the National Anthem protests
The NFL and team owners failed to take any formal or public action against players who failed to stand during the playing of the National Anthem in the 2016 season. Some contend that Colin Kaepernick’s release from the 49ers and failure to obtain a contract with any other NFL team in the 2017 season was an unacknowledged blackballing by the team owners to discourage further similar expressions.
The NFL and team owners certainly have the legal authority to discipline or even dismiss any player for actions they find objectionable. Under Section 2 of the player contracts it states a player will, “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game” and Section 11, that says, if a “Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.”
Mr. Kaepernick and other players who have chosen to ignore both tradition and law in this regard are in fact diminishing “public respect for and approval of those associated with the game.” Apart from generalized polling that shows public opinion considers these protest expressions unpatriotic, there is also the fact that NFL ratings dropped significantly in the 2016 season and some evidence indicates that in part the drop is due to these protests. The bottom line of the league and teams is negatively affected by these protests.
The failure of the NFL and team owners to address effectively and publicly the protests of Mr. Kaepernick and others who acted similarly left a festering wound among fans. They may have hoped that Kaepernick’s failure to get hired by any team in 2017 would send a message and the issue would die a silent death. They were wrong.
4. President Trump raises the stakes
President Trump is a horrible orator and communicator. His demeanor is something unseen in past presidents and his tweeting sometimes exasperates even his most ardent supporters. But he has a knack for recognizing inhibited emotion without a voice. It is why he won the election in 2016.
When he made his comment about firing those protesting during the National Anthem he struck a nerve and no doubt millions who heard him say it cheered. The failure of the NFL and team owners to address the issue effectively and publicly left a lingering wound. Mr. Trump gave voice, in his raw “un-presidential” manner, to the wounded.
But he also caused some football players and athletes to view the threat of firing protesters as a more general threat against them. And his call to boycott the NFL if they did not act united the team owners with the players because their already declining profits might be further diminished. The brand is at risk. Even large donors and longtime friends like New England Patriots owner Bob Kraft expressed dismay with the president.
5. The National Anthem is used as the context for new protests
On the first football Sunday after President Trump’s comments the NFL, team owners, and players scrambled to come up with a response. Some teams stood with locked arms in unity (Texans). Some teams had players kneeling, standing with hands on hearts or locking arms in an expression of various positions (Patriots). Some teams decided not to come on the field during the National Anthem (Steelers, Seahawks, Titans despite the NFL Game Operations Manual requiring all players be on the sidelines for the National Anthem).
But the protest purpose had now changed. This was no longer what Mr. Kaepernick had started (right or wrong). This was about protesting the President and his comments. The league, the team owners, and players were trying (some more successfully than others) to show unity against a perceived assault by the President on them and their livelihood.
The protest purpose had changed but the National Anthem was still the victim – a mistake. The New England Patriots crowd at Gillette stadium in Foxboro, Massachusetts booed, jeered and demanded that the players stand. An employee with the Buffalo Bills announced he was quitting his job and walked out of the stadium. Online protests of the action went viral in social media.
Following these protests during the early Sunday games the late afternoon games and Sunday Night Football saw further declines in ratings. Sunday Night Football was down an additional 11% compared to an already depressed 2016 performance.
6. Invoking the First Amendment is a false argument
The First Amendment is about government - not private life. It says specifically, “Congress shall make no law … abridging the freedom of speech.” It does not apply to an employer.
Absolutely, it is the right of the protesters to express themselves without fear of government action against them. But the protest is taking place within the context of private employment. Employees cannot go into their place of employment and begin protesting whatever may bother them on a given day.
The team owners have a right to fire their employees for basically anything they find detrimental to their business (see item 3 above) and there is no protection from that within the First Amendment.
7. Where do we go from here?
- The NFL, team owners, and the players association should agree this week to stop any form of protest during the National Anthem or at any period throughout its games and formally announce such an agreed policy.
- President Trump should stop attending rallies, avoid making extemporaneous comments, and stop using Twitter. Rather, he should make considered and vetted statements via teleprompter and issue official press releases about issues of importance to the nation.
- Professional athletes desirous of social change should conduct any protest, support any group, make any statement, or participate in any civil disobedience they like outside of their place of employment.
- An open and objective discussion about high crime rates, incarceration rates, poverty rates, generational government dependence, and poor educational attainment in some segments of the black community focused on resolving these issues should be conducted in the public square.
- The American people should be allowed a respite from political division somewhere in their lives. Institutions and traditions that provide such respite should be supported and protected – that is what entertainment is for and professional sports are entertainment.