Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Sunday, October 1, 2017

Colin Kaepernick, Meet Antonin Scalia

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.

No comments:

Post a Comment