One
of the principal reasons people have condemned Colin Kaepernick for taking a
knee during performances of the Star-Spangled Banner is that such conduct disrespects,
demeans, and diminishes the symbolic value of our national anthem. On this
issue, Kaepernick has an unlikely ally: the famously conservative Supreme Court
Justice Antonin Scalia.
In
the course of protesting the Republican National Convention in Dallas in 1984,
Gregory Lee Johnson doused an American flag with kerosene and set it on fire.
Johnson was charged with violating a Texas criminal statute prohibiting the
“desecration of a venerated object.” He claimed that the First Amendment
protected his conduct as a form of symbolic speech, but the trial court
rejected that argument and he was convicted.
Johnson
appealed and won in the Texas appellate court. The Supreme Court of the United
States granted review and held that the statute ran afoul of the First
Amendment.
The
Johnson case provides an important
insight into the Kaepernick debate because of one of the arguments that Texas
raised in defense of its law. Texas contended that the statute served the
important governmental purpose of preserving the flag as a symbol of nationhood
and national unity. The state maintained that Johnson’s conduct threatened the
flag’s symbolic value.
At
oral argument, the lawyer for Texas barely had a chance to state her client’s
position before Justice Scalia intervened. “Why did the defendant’s actions
here destroy the symbol?” Scalia asked. He continued: “His actions would have
been useless unless the flag was a very good symbol for what he wanted to show
contempt for.”
The
lawyer for Texas pressed her case: “[W]e believe that if a symbol over a period
of time [is] abused that it can, in fact, lose its symbolic effect.” Justice
Scalia would have none of it: “I think not at all. I think when somebody does
that to the flag, the flag becomes even more of a symbol of the country.”
Justice
Scalia joined in the Court’s majority opinion, which was written by Justice
William Brennan. Taking a cue from Scalia’s questioning, Brennan challenged the
underlying logic of the argument advanced by Texas.
Brennan
wrote: “We are tempted to say, in fact, that the flag’s deservedly cherished
place in our community will be strengthened, not weakened, by our holding
today.” He went on, “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
strength.”
Indeed,
Brennan’s opinion referred specifically to the Star Spangled Banner. “[O]ne of
the proudest images of our flag,” he wrote, “the one immortalized in our
national anthem, is of the bombardment it survived at Fort McHenry.” The flag
reflects “the nation’s resilience,” he declared, “and it is that resilience
that we reassert today.”
Of
course, Justice Brennan—like Justice Scalia—understood the special
sensitivities that surround important patriotic symbols like the flag and the
national anthem. But, as Louis Brandeis observed and the Court has often
reiterated, under the First Amendment the remedy for the speech we hate is more
speech, “not imposed silence.”
“We
can imagine no more appropriate response to burning a flag than waving one’s
own, no better way to counter a flag burner’s message than by saluting the flag
that burns,” Justice Brennan declared. With respect to the current controversy,
he might have added: if you feel offended by someone who takes a knee during
the national anthem, then your remedy under the First Amendment is to sing more
loudly. Or, I suppose, to Tweet until your fingers cramp.
Many
of the criticisms of the NFL players’ protest miss its central premise: that
the national anthem has tremendous symbolic significance. After all, would
anyone care, or even notice, if they took a knee during a team fight song or a
staple piece of stadium rock music? To borrow Justice Scalia’s wonderfully
dismissive phrase: “I think not at all.”
Justice Scalia probably had little sympathy
with the message Johnson had to convey and might well have agreed with his close
friend and colleague Ruth Bader Ginsburg’s observation that Kaepernick’s
protest is “really dumb,” a statement for which she later apologized.
But
Scalia saw in the argument advanced by Texas a deep logical inconsistency. He
recognized that a symbol’s power is not diminished by an act of protest that
derives its force from that power. To
the contrary, as he observed, such a protest affirms that it is a “very good
symbol” indeed.
I
personally have old-fashioned sensibilities about the flag and the national
anthem. I stand up; I take my hat off; I put my hand on my heart; I sing as
best I can within the scope of my painfully limited talents.
But
I have recently come to understand better that part of what I am saluting is
the sanctity of the individual conscience and my right to choose to do
otherwise. In this I have been unexpectedly tutored by a Supreme Court Justice
with whom I have frequently disagreed and a professional football player. I am
good with that. I will take enlightenment wherever I can find it.
