OPINION: #TakeTheKnee Supporters Need a Constitutional Crash-Course
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| PHOTO: New Hampshire Motor Speedway |
But then on Sunday morning, there it was again - #TakeTheKnee. I joined in, too, fed up with it all. I said that the “take the knee” movement was unwelcome in sports because it replaced tribalism for fun with an actual “me versus you” mentality, and that doing it during the National Anthem undermined the ceremony's gesture of national unity. I still feel that way. But one by one, NFL and NBA team owners fell all over themselves to get in line with the protesters. I had hoped that NASCAR would stay out of it, but we’re well past that point now.
I now realize that this moment was inevitable. How couldn’t it have been with NASCAR’s countless patriotic initiatives over the years, from “Operation Desert Support” in 1991 to this year’s “NASCAR Salutes” and yes, every opening ceremony? Like it or not, folks, we were going to be pulled into this, and it shouldn’t be a surprise which side we are on. Richard Petty and Richard Childress may have been the first to speak, but when you get down to it, they speak for much of the sport, this writer included.
For those questioning this stance, let’s take a moment to understand what’s happening. And more importantly in this day and age – what’s not happening.
Before I launch into this, let me put my credentials on the table. In a previous life, back in 2011, I earned my law degree from John F. Kennedy University here in the Bay Area. My best subject was Constitutional Law, where I earned the Witkin Award for scoring top of my class. To be clear, I am not an attorney, but when I say these things about the Constitution, I’m not talking out of my rear end, either.
First of all, “it’s free speech” doesn’t end the conversation. The belief that freedom of speech is an absolute right is one of the biggest misunderstandings of the average citizen, a sad consequence of civics no longer being taught in public schools. It is a fundamental right, yes, and one of our most important, but an alleged infringement isn’t automatically illegal. The U.S. Supreme Court won’t even take your case under consideration unless your speech has been restricted by the state or federal government. An act by a private group, such as a sports team, won't even be looked at. Even if it was, there’s still a test the Court uses to determine which side of the line it falls on. This test is itself merely a set of guidelines that each justice could interpret differently. Thus, even the strongest case can literally come out either way.
It’s also not unconstitutional to say “I have no problem with you protesting, just don’t do it here.” This is the longstanding “time/place/manner” restriction, which is also recognized by the Supreme Court. Simply put, this restricts only where and how you protest. It does not prevent you from expressing your views. It’s the same reason employers have you obey a “code of conduct” as a condition of working for them. You can do what you like on your own time, but when you’re on the clock, you have to follow the rules. I think most people who are against “taking the knee” can agree with this – protesting is fine, just do it somewhere else.
But those on the #TakeTheKnee side aren’t willing to budge. They seem to think a protest only has worth if it’s seen during the NFL pregame. And that’s the biggest mistake of all.
Like it or not, the Constitution doesn’t care whether or not your protest gets seen. Athletes shouldn’t either. No lives are saved or made better just because someone kneels during the National Anthem – only egos. Real change often happens away from the cameras, at soup kitchens and communities ravaged by natural disasters. It’s done by people of all walks of life, of all races and all religions.
If you are truly concerned about your cause, get off your knee and join in.
