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The Kaepernick Effect

If you didn’t know who Colin Kaepernick was before a few weeks ago, you sure do now. A back-up quarterback for the San Francisco 49ers, Kaepernick’s controversial decision to sit and then kneel during the national anthem has sparked an incredibly interesting debate nationwide. Kaepernick’s decision, and that of numerous other young athletes following suit at both amateur and professional games, is a protestation of the oppression of African-Americans by the police and society in general.

As I learned from renowned civil rights lawyer, Daryl Parks, our guest last week on LawCall, Kaepernick is using the platform he has available to him to peacefully express his opposition of the continued violation of civil rights experienced by African Americans at the hands of law enforcement and others.

Kaepernick is perfectly within the rights granted to him by the First Amendment of the U.S. Constitution to express his opinions. We are all talking about it now, so maybe Kaepernick’s gesture has been somewhat successful. However, many believe that the real effect of Kaepernick’s silent protest is distasteful, irreverent, and shows a complete disrespect for those who have sacrificed their lives to secure Americans their First Amendment rights. After all, there has to be a more effective way for Kaepernick to call attention to this important civil rights issue from his privileged place on a professional football field without thumbing his nose at the young servicemen and servicewomen returning home from a war where they lost a limb, a best friend, or their mind defending our flag and our freedoms.

This is not the first time this type of issue has been hotly debated in our society. The U.S. Supreme Court adjudged this very type of “First Amendment vs. patriotism” case during the height of WWII. In the very midst of the horrible atrocities committed by the Nazi regime, and the incredibly patriotic sentiment in our Country after just having entered the War, the Court nevertheless issued an opinion in West Virginia State Board of Education v. Barnette, in favor of a Jehovah’s Witness family who challenged a school decision to expel their daughters for refusing to say the Pledge of Allegiance to the U.S. flag. Quite impressively, the U.S. Supreme Court rose above the strong social need for national unity and objectively focused on the protection of our individual constitutional rights. Essentially, the Court’s opinion stands for the idea that freedom can only be truly be achieved when those in power allow others to have free minds and think for themselves.

Justice Robert Jackson wrote, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” Justice Jackson pointed out that patriotism flourishes more when it is not a compulsory activity and he said, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

The Court’s words expressed in Barnette may be over 70 years old, but the sentiments are instructive in today’s Kaepernick debate. Agree or disagree with Kaepernick’s unpatriotic protest, but don’t lose sight of the fact that Kaepernick is reminding us all of how lucky we are to live in a Country where no one in power can “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Kaepernick’s actions are actually demonstrative of some of the greatest values of our society – our freedom to think as individuals and our toleration of differences of opinion.

As Evelyn Beatrice Hall wrote, “I disapprove of what you say, but I will defend to the death your right to say it.” Maybe the real effect of Kaepernick’s protest is something he never intended and something of incredible value to us all – a reminder of what it means to have, exercise, and protect our Constitutional rights.