On Saturday, prior to Nebraska’s game against Northwestern, defenders Michael Rose-Ivey, DaiShon Neal, and Mohammed Berry knelt during the playing of “The Star Spangled Banner.” The action was a protest, inspired by San Francisco 49ers quarterback Colin Kaepernick, to draw attention to the deaths of African-Americans at the hands of police. Rose-Ivey described the rationale for his actions as follows (as quoted by the Omaha World-Herald):
As everyone is aware, this past Saturday, before the game against Northwestern, DaiShon Neal, Mohamed Barry and myself kneeled in solidarity with Colin Kaepernick and many other athletes across the country, both professional and non-professional, who are standing together to use their various platforms to bring awareness about police brutality and the recent deaths of black men and women at the hands of police officers.
To make it clear, I am not anti-police, I am not anti-military, nor am I anti-American. I love my country deeply and I appreciate the freedoms it professes to afford me.
I feel I am obligated to stand up and bring awareness to the social injustices that are not limited to police brutality but also to the policies and laws that discriminate against and hinder the growth and opportunities of people of color, low-income people, women and other marginalized communities.
As a rule, I try to avoid politics and controversy here. While I have my opinions on the Kaepernick-style protests, I decided not to use this forum to share them with the world. If you want a really thoughtful piece on the protests themselves, check out Brandon Cavanaugh’s piece from Today’s U.
I even held fire when Rose-Ivey and the other players – and the predictability of this response was so disheartening – received racist death threats as a result of their actions. Such revoltingly ignorant and evil actions would seem not to need a response – “hey, how about not being a racist bully” doesn’t seem like a particularly hot take – but maybe in 2016 it’s becoming necessary.
Then I read about what University of Nebraska Regent Hal Daub had to say about the protest by the Nebraska players (according to Chris Dunker of the Lincoln Journal-Star):
It’s a free country. They don’t have to play football for the university either.
They know better, and they had better be kicked off the team.
They won’t take the risk to exhibit their free speech in a way that places their circumstance in jeopardy, so let them get out of uniform and do their protesting on somebody else’s nickel,
Those publicity seeking athletes ought to rethink the forum in which they chose to issue their personal views at the expense of everyone else.
In addition to following Nebraska football (although my wife would say there’s precious little time for much else, especially in the fall), I have some experience in the law. And when a Nebraska Regent – the elected officials responsible for the entire University of Nebraska system – says in public that football players at a Nebraska university should be kicked off a team, that’s a big deal.
Why? Because that’s clearly unconstitutional.
To understand why, we have to understand what is being asked of the players. Observing “standard” decorum for the National Anthem is asking players – commanding players, in Daub’s view – to make a political statement. There’s no getting around that position. If it wasn’t a political statement – if what you say and how you act during the national anthem doesn’t carry meaning – then the national controversy generated by Kaepernick would not exist.
Nebraska is a state university, which means when it takes an action, it ultimately carries the force of the state of Nebraska behind it. That includes what the university can require football players to do during the National Anthem. And the First Amendment (made applicable to the states by the Fourteenth Amendment) has very clearly been understood to mean that the state cannot mandate a citizen to make a political statement he or she does not want to make.
The most famous United States Supreme Court case about this is probably Wooley v. Maynard, where the Court said the state of New Hampshire could not require citizens to put a license plate on their cars with the state motto of “Live Free Or Die” if that message conflicted with their own personal views. But there are a host of other cases making it clear that the government cannot compel speech from its citizens.
That’s why Daub has it exactly backwards. Rose-Ivey and the others weren’t expressing “personal views at the expense of everyone else” (never mind the argument about how anyone else’s expression of patriotism was affected by someone quietly kneeling). They were declining to participate in a political statement by observing standard decorum for the National Anthem. They were doing so quietly, and in a way that was specifically designed after consultation with veterans to be respectful of the military while still reflecting the message of the protest (according to Will Brinson of CBS Sports)
And Daub wants to use the power of the state to punish those players for failing to make the political statement he felt the players should make, seeking out the media to criticize the “publicity seeking athletes.”
Now, it’s different if a professional sports league, such as the NFL or NBA, wants to put a rule in place with regards to the National Anthem. The First Amendment protects you from the government, but it doesn’t protect you from your employer (unless you work for the government, of course).
Since the story came out, Daub has now denied saying he said he thought the players should be removed from the team, prompting this headline from Deadspin (and meaning that Daub’s statement has gained national attention and that he probably isn’t going to put this particular cat back in the bag):
Nebraska Regent Calls For Kneeling Players To Be Kicked Off Team Then Tries To Deny It (Filed to: LIARS)
While it doesn’t sound like Daub is going to get a mulligan for this one, it is good that he recognizes his position was untenable. As a lawyer and long-time Congressman, Daub should well know the freedoms guaranteed to all citizens, and that the power of the state cannot be used to compel anyone – even a Nebraska football player – to make a political statement he or she does not want to make.
There’s plenty of room for conversation about the moral justification for the kneeling protest, and people of good faith on both sides can honorably take opposing positions. Pete Ricketts, Nebraska’s Governor, called the protests “disgraceful” but upheld their right to protest (according to Sam McKewon and Emily Nohr of the Omaha World-Herald).
Look, if seeing Nebraska football players kneeling during the National Anthem upsets or offends you, I’m sure it feels good to say that they should be kicked off the team. But the Constitution – the document that ultimately the National Anthem is celebrating – clearly says the state is forbidden to do such a thing.