Conservatives Claim Kaepernick Breaking Law

By: Jackie Hacker, 2L
Online Editor

Colin Kaepernick, quarterback for the San Francisco 49ers, has come under attack in recent weeks for his nonparticipation in the ritual pregame standing for the Star Spangled Banner.

To recap, in a preseason game, Kaepernick took a seat while a stadium full of people stood up to sing the words of the national anthem. After the game, Kaepernick told the press that his refusal to stand was his attempt to use his position as a public figure to protest the oppression of people of color in this country. Since this instance, Kaepernick has not participated in the pregame standing for the national anthem, though he has since switched to taking a knee during the anthem out of a respect for veterans.

His protests have sparked both a wave of solidarity from other professional athletes and celebrities as well as a tide of criticism from a range of  figures who oppose his decision.  These criticisms have generally articulated the belief that his actions are highly disrespectful to the symbolism behind the ceremony, and thus, are unpatriotic.

Recently, however, some conservative groups have transitioned from denouncing Kaepernick’s actions as unpatriotic to calling them unlawful.

Colin Kaepernick, football player

Kaepernick has been the center of controversy this season. | Source: www.gannett-cdn.com

Radio host Brian Fischer, for example, recently published an article on the American Family Association’s website, which pointed to a section of the U.S. Code governing national ceremonies.  This particular segment of the statute outlines the proper conduct citizens should take during the national anthem:

“During a rendition of the national anthem…when the  flag is displayed… persons present should face the  flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart.” (36 U.S. Code § 301)

Although Fischer concedes that no penalty is associated with the Federal Flag Code, he writes that, “just because you won’t get it in trouble doesn’t mean you are not violating federal law.” In context, the law is situated in a chapter of Title 36 of the U.S. Code, which regards “Patriotic and National Observances, Ceremonies and Organizations.” This group of statutes advises on a wide range of national holidays and observances.  These include provisions that proclaim the national flower (a rose) and the national tree (an oak) as well as provisions that hold that the president may optionally issue a proclamation each year that the 9th day of October is “Leif Erikson Day.” (36 U.S. Code § 114). Although the ceremony and ritual surrounding the singing of the National Anthem is regarded more seriously than traditions surrounding national botanical symbols and holidays, the advisory nature more so than a legally binding one.

Even if the Flag Code imposed criminal penalties, however, its provision that compels participation in the national anthem would be subject to serious First Amendment challenges.  The 1943 Supreme Court case, West Virginia State Board of Education v. Barnette, held that students cannot be compelled to recite the Pledge of Allegiance in schools, because this is compelled speech. Similarly, in the 1989 case Texas v. Johnson, the Court held that  flag-burning is a form of speech and that the First Amendment prohibits the abridgement of this type of speech. When Congress attempted to circumvent this decision the next year by criminalizing flag burning that was not of an expressive nature, the Court reaffirmed in United States v. Eichman that it would continue to interpret political speech expansively. However, in 1991, the Court held in Barnes v. Glen  Theatre, Inc. that the act of nude dancing, despite its expressiveness, was not covered under the First Amendment as protected speech.  The Court held that the substantial government interest in protecting the order and morality of society outweighed the condoning of public nudity. 

Therefore, in order for the Supreme Court to uphold the constitutionality of a criminal penalty resulting from the Federal Flag Code, the Court would have to  find that the behavior that the Flag Code criminalized would impinge upon the morality and order of society.

Because of the Supreme Court precedent stacked against groups who advocate to condemn Kaepernick for his kneeling, it would likely be an uphill battle to argue that noncompliance in the anthem jeopardizes the order of society but that  ag burning and noncompliance to the Pledge of Allegiance does not.

Unless faced with a more serious challenge, Kaepernick, and those who kneel with him, seem to be within the realm of their First Amendment rights of political expression. 

The local University of Virginia men’s basketball team, who recently kneeled to express their solidarity with Kaepernick, and any W&L sports teams that choose to do so, seem to be well within their rights to violate this particular federal law.

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