Letting Life Lead
In 1989, when I was fifteen, a group of Vietnam War veterans in Seattle took a post office flag and burned it along with a thousand small paper flags given out to those protesters at the demonstration. These veterans violated a new anti-desecration law in protest of that law which they claimed was trying to enforce patriotism and encroached upon the American right to free speech. The leaders of the protest were prosecuted and the charges were dropped by the Supreme Court who ruled that the law was unconstitutional and upheld a prior ruling (Johnson vs. Texas) that flag burning was a protected form of free speech. Although ruled unconstitutional, the law is part of US code but is not enforced. Other attempts at getting a Flag Protection amendment passed have failed once in 1990 and again in 2005.
Symbolic speech is protected (whether or not a group of people disagree with the message) unless the speech “incites immediate lawlessness” and even then there are other laws that cover breaching the peace first.
Current events aren’t the first time the protest of the United States flag, nor its use has come into question. And every time an effort is made to restrict citizens from embracing the flag to symbolically protest, it is overturned or it backfires.
I thought we had come so far since I was in grammar school.
Whenever there is an outcry that a person is sitting, or not saluting, or kneeling, or silent, or saying the original words of the pledge as written by Francis Bellamy in 1891 without the added words “under god”, they have the right to do so. The constitution guarantees the freedom of non-verbal expression and in 1943 the Supreme Court even ruled that school children could not be compelled to salute the US flag. That means, no one is compelled to say or do anything if the anthem is played or a flag is raised.
Participation is voluntary not compulsory.
Justice Robert H. Jackson said, “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.”
So, is the incident with the NFL and taking of a knee a desecration of the flag punishable by law (or open for a government official to rally individuals to fire and punish participants)? The courts have consistently said, no. Symbolic speech and the ideas that give them life are protected.
But, is that the right question to be asking?
Shouldn’t the question be, what is the message!? What compels people to take a knee (an innocuous act when compared to other protests that have surrounded the US flag) if it is clear that the action will rouse at least some negative reactions? Is it a good message? Do I agree with that message regardless of how I feel about kneeling?
It is important to acknowledge that a lot of the response from the White House has been to keep focus away from the actual message and redirected it instead towards an antiquated, unconstitutional idea that American Citizens are required to do anything concerning the flag. Such a redirection fuels the divide already present with in the country — a chasm which has been exacerbated in the last year by all that has happened and continued to happen.
We are a multi-ethnic family and my children need to know what the protest is all about without the vitriol. My words are for them:
People are being killed by the very people meant to protect them simply because they have dark skin. It is part of a bigger problem has been ignored, brushed aside, and buried. Those who speak out against it are told to not over-react.
Taking the knee is about the desecration of people and the violation of their human rights. Unfortunately, it took telling people that they weren’t allowed to kneel that got those who were too afraid to join in to finally do it. If anyone tries to say the protest isn’t about race, you tell them it has always been about race.
When is it the right time to protest a known problem that too few want to acknowledge or can’t see? Anytime there is opportunity to get people to start talking even when they are afraid.
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(40 years in the making)
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