Author | Nathan Wright |
Kneeling for the national anthem. It's been in the news a lot lately, for good reason. It all started last year when Colin Kaepernick (left) decided to kneel to protest police violence. This season, it went widespread throughout the whole NFL. Entire teams kneeled together. Some kneeled before the anthem, others kneeled during the anthem, some stayed in the locker room. Many times people just boil it down to their own opinion and talk about that, and although this is good, we also should look at what the law says about it. But what does the law actually say about kneeling during the national anthem? Section 36 of the US code says: "all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart."
Seems pretty straightforward, right?
Well, it’s not. In an interview with Scholars Guild’s US History teacher, Mrs. Cooper comments on the importance of context, “I [personally] think they should still stand for the flag, but I do think you have to look at, as with any protest, to look at the whole picture and the reasons for why they’re doing it...there’s been a long history of people using the flag as protest – there’s like flag burning – and you can go back to the Olympics back during the Black Power movement. There’s some famous photos of black athletes with black power symbols and there’s been a long history of people using the flag as protest. ”
In addition, interpretation is critical when understanding the law.
In an interview with CBS news, Eugene Volokh, a law professor and First Amendment expert at the UCLA School of Law, said, "It's not clear to me that 36 U.S.C. 301 was ever meant to be legally binding — it says what people 'should' do rather than what they 'shall' or 'must' do." In the same interview, Catherine Ross , a law professor at The George Washington University Law School who specializes in constitutional law, said, "When something is mandatory the legal term is 'shall,' so you know immediately it's not enforceable [there is] no penalty."
Essentially what the scholars are saying is that if standing at attention were mandatory, the word used in the US code would be “shall” not “should.” Because the wording is should, it is not mandatory. This interpretation is further supported by a few things. First, there is no penalty for not complying with this law/guideline. Secondly, it is not under the section of code that is generally considered “the criminal section.” Lastly, many constitutional scholars agree that even if the wording were "shall" and the penalties were enforceable, it would be overturned by the first amendment.
However, the first amendment is different when the act of protest is in a work environment. Coaches and owners have made statements about this controversy. Many have said that they don’t want their players to kneel. Should they be allowed to keep their players from kneeling? Yes. Pretend you got a job at Arby’s. When you get that job at Arby’s, you surrender part of your first amendment rights. You can’t just go around telling the customers that you think they’re annoying. You couldn’t kneel if a police officer came in. That’s because the owners and the management want to put forth a certain image of the company. And you’re now representing the company, so you have to follow those guidelines. It’s just the same for an NFL player. They are employed by the owner of the team. Their manager is the coach. When they take that job, they surrender part of their First Amendment rights, just like with any other job. So, if the owners don’t want the players to kneel, then the players shouldn’t.
In the end, there is no right or wrong answer. It’s really a decision that’s up to the players and their teams. The politicization of the issue is just another example of how people on both sides blow things way out of proportion.