Taking a Knee and Other Non-Controversies

I have the easy answer: If the national anthem is as sacrosanct as President Trump wants us to believe, then we should stop playing it at insignificant sporting events, by which I mean, all of them. But here we are.

Unfortunately for America’s “Trumpsters” you just cannot pick and choose when to apply the First Amendment. Trump’s 37% may not like it when they believe the Star Spangled Banner is being “disrespected,” but Jews didn’t like it when the Ku Klux Klan marched in Skokie, and Liberals aren’t happy when Ann Coulter plans to spew her hate speech at the University of California/Berkeley. I say to all of you. Too bad and get over it.

But I digress. Back to the National Anthem.

Can we really be having a discussion about patriotism? Does taking a knee have anything to do with whether you are a true American? Of course not. Taking a knee has nothing to do with the Star Spangled Banner, the American flag or being a patriot. Taking a knee is a protest against racial inequality that white, uneducated conservatives don’t like, so therefore they’ve labeled it un-American. Where are they when the American Flag is desecrated by the manufacturers of American flag paper napkins, jock straps, coasters and thong bikinis?

As a lawyer, this entire debate is most frustrating because all this nonsense already has been resolved by Justice Robert H. Jackson who wrote the majority opinion for the Supreme Court in West Virginia State Board of Education v. Barnette in 1943. In that case, the Supreme Court struck down a West Virginia law that made it mandatory for children in public schools to salute the American flag and recite the pledge of allegiance. If they refused, they were expelled.

Justice Jackson, who may be the best writer ever on the Supreme Court, (some say because he was the last Supreme Court Justice who did not graduate from law school) penned the following:

“The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But 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.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Justice Jackson’s eloquent recitation of the law of our land has been in place for almost 75 years. The pledge of allegiance, the American flag, and the National Anthem are all the same symbols of our freedom and are subject to the same First Amendment scrutiny and limitations. It’s really a no-brainer, which leads me to the conclusion that only a moron would make this a national debate again.