President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment. A few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.
The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.
The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.
The optimal content of social norms cannot be decided by First Amendment case law.