Free speech not free? It’s complicated. And consequences abound

Art by Chris Christian (on

Recently, there has been a flurry of fierce, loud and angry debates on social and mainstream media about what can be said and what ideas can be expressed. People get fired from their jobs for posting their thoughts on social media or making comments that other people find offensive or simply expressing ideas with which others disagree.

What is in contention here? One of the core values of the American society is enshrined in, and commonly referred to as, the First Amendment to the Constitution of the United States. This

Since 2016, we may recall how intensely NFL quarterback, Colin Kaepernick has been criticized, for starting what he calls “protest of racial injustice in America,” through kneeling during the national anthem. Till this date, Kaepernick and anyone who takes a knee during the national anthem is vilified as unpatriotic, unAmerican, should not even live in the United States. To Kaepernick, he was, once again, drawing attention to “police brutality and discrimination against African–Americans broadly, the Washington Post reported. But what followed was sharp (counter)condemnation , and immense division among American left-right political spectrum. Such criticism was led by by U.S. President, Donald Trump,

Opposers of the quarterback’s protest argue that kneeling during the national anthem is ‘unpatriotic’, as it shows disrespect for the flag and for veterans who risk their lives ‘for the freedom of Americans.’ On the other hand, supporters of Kaepernick contend that his First Amendment right allows him latitude to protest, even if it is kneeling during the national anthem. Because of the incident, no team selected Kaepernick during the following football season. One can argue that this was the price tag of Kaepernick’s actions, but it may be hardly so, or even weighing heavily on him for obvious reasons. And as we have seen, while there might have been consequences for Kaepernick actions, the NikeJust Do It–Believe In Something” corporate campaign, and a human rights award from the reputed Amnesty International seem to be bigger wins for him.

There is no gainsaying that Kaepernick has the right, according to the First Amendment to express his ideas and protest. He is an American and is protected by the law. But the law does not restrict protest using the national emblems or define what should or should not be used to protest.

The Kaepernick story is not an isolated case. It’s 50 years this year since the historic Smith–Carlos Black Power Salute during the 1968 Olympics in Mexico City. The two athletes–Tommie Smith and John Carlos–had just been awarded their medals at the Olympic Summer games. The world was watching. And as the Star-Spangled Banner played, they bowed their heads and raised their black-gloved fists. Smith is said to have worn a black scarf to symbolize black pride, while Carlos wore beads in honor of the victims of lynching. The athletes’ simple, nonviolent acts were in protest of ‘racism and exploitation.’ But they were met with an instant blaze of admonition, including from the International Olympic Committee, IOC.

Although years later, the once denigrated athletes were praised for their bravery and courage; with statutes honoring them raised in their Alma Mater (San Jose State University), their protest had disparaging consequences. It was reported that Smith and Carlos received death threats, were called traitors, and “treasonable black rats.” The general notion was that they had not only disgraced the Olympics, they had disgraced the American flag. Carlos and Smith were suspended from the U.S. Olympics team and chased out of the Olympic Village. Brent Musburger, a Chicago columnist even called the protesting athletes “black-skinned stormtroopers.” Musburger has recently apologized to the athletes, the New York Times reported last year.

In all the incidents described above, the protesters were reasonably and supposedly exercising their First Amendment right. But consequences followed. Why so?

The First Amendment is often misconstrued. Often times Americans have interpreted what free speech means only from legal perspectives provided by the courts. Free speech is currently in a crisis of interpretation, because people tend to interpret free speech only within assumptive confines of the law–what the constitution protects, which is fine, but they miss out on a key understanding.

We all know what the First Amendment says:

According to Robert Richards, Director of the Pennsylvania Center for First Amendment and professor of First Amendment studies at the Pennsylvania State University, Americans often leave out the government component when interpreting this law. When I spoke with him he said “ in order to have a first amendment issue or challenge, you have to have some connection to government… a lot of people forget that, because they automatically think if their speech is somehow being infringed upon as their First Amendment rights are violated, you don’t have any first amendment rights being violated until you have the government restricting speech.”

Going by the aforementioned legal expert perspective, the Smith and Carlos case 50 years ago and the Kaepernick case recently, any consequences they faced can be reasonably accounted for, because neither the International Olympic Committee nor the NFL are government institutions or government actors, although we have members of the current administration weighing in on the Kaepernick protest. But why have they (Smith and Carlos, and Kaepernick) been considered heroes (although not universally)? How do people navigate the intersection between sports (any other activity) and activism in the wake of right groups?

The growing level of the quark mire speaks to the level of noise that America is currently experiencing in terms of conversations surrounding free speech.

Three words characterize the free speech debate: polarization, postmodernism and provocation. The wave of events and protests across America, prove one thing: Free speech seems to be clearly experiencing a free fall, and this should not surprise anyone because for so long the concept has been a convenient myth. There is no absolute freedom to spew out just anything or express any ideas anyhow. Contextual consequences abound.

Not every consequence of modern exercise of First Amendment right seems to be contextually correct. Even when the law seems clear about it an exercise of free speech, voices are still divided.

In the fall of 2017, a Texas high school senior was expelled for refusing to stand for Pledge of Allegiance. Justifying her actions, the student, India Landry said “I don’t think that the flag is what it says it’s for, for liberty and justice and all that. It’s not obviously what’s going on in America today.” The incident has now led to a federal legal battle over free speech violation claim. But America has been here before and for more than half a century, it has been established that a public institution like Windfern High School cannot force a student to recite the Pledge of Allegiance or punish them for not participating in the pledge.

“What happened to the high school student in Texas is clearly a First Amendment issue…” director Richards of the Pennsylvania Center for First Amendment told me. “This is a violation of First Amendment because Windfern High is a public school and there is a whole array cases out there that deal with student expressions…and the government cannot force students recite the Pledge…the school cannot punish the student in any way whatsoever.” Director Richards added.

Indeed in Ms. Landry’s case the First Amendment comes into play, although her mother who has filed a lawsuit against Cypress-Fairbanks Independent School District (the school district of Windfern High), says expelling her daughter was also racially motivated. Meanwhile, Ms. Landry and her mother claim that before the day she was expelled, she had been sitting during the recitation of the Pledge and she had never been punished. The Texas Tribune reported that Ms. Landry’s “protest had gotten her kicked out of her English class five times; her law teacher told her she was disrespectful, according to a 2017 lawsuit.”

Whether they are right or not, the law is clear about actions during the Pledge of Allegiance. In a landmark case in 1943, the Supreme Court ruled in West Virginia State Board of Education v. Barnettethat it is unconstitutional to force a student to recite the pledge or salute the flag. Essentially the ruling made it unblemished that there is freedom to not pledge allegiance. In 1969, the Supreme Court also highlighted students’ right to peaceful protest during public school hours, when it ruled in favor of students who sought to wear black armbands to protest the Vietnam War.

“The 1969 ruling essentially said that students do not lose their constitutional rights to free speech at the schoolhouse gate,” Francisco Negrón Jr., the chief legal officer of the National School Boards Association told the New York Timesin 2017. So, does the First Amendment protects Ms. Landry’s actions here, it seems undoubtedly so. But that is for the competent law court to decide, as this has now become legal battle over free speech violation.

According to the Houston Chronicle, Texas Attorney General, Ken Paxton has filed a notice in support of Windfern High, in a civil-rights lawsuit brought against Cypress-Fairbanks Independent School District. In the notice, AG Paxton argues that “school children cannot unilaterally refuse to participate in the pledge.”

AG Paxon’s argument may be actually valid because according to Texas Education Code in its section (c) “on written request from a student’s or guardian, a school district or open-enrollment charter school shall excuse the student from reciting a pledge of allegiance…” But there remains a fundamental, yet unanswered question: On issues of free speech, does (should) a state law overpower federal law? Again, opinions may conflict because this has to do with free speech, an American value that everybody claim to understand and can police.

The Smith and Carlos case 50 years ago, and more recently, the Kaepernick and the Landry cases today, deal with a particular demographic of Americans who are protesting racial discrimination and social injustice; African–Americans. Rightfully so, we all understand and can agree to some extent, why African-Americans will use all avenues they have to call attention to their plight. And this brings in questions of whether historical and cultural contexts are important in conversations surrounding the exercise of free speech and First Amendment rights? I suspect the disagreement may be on how to protest, since some forms for (and of) protests are now considered unpatriotic.

Across America right now, there is a lot of division and some of the division comes from the fact that people don’t tend to agree on what is supposed to be expressed and what cannot be expressed. Clearly, there are so many invisible constraints on speech that people don’t know. How should Americans be navigating such an environment of increasing ambiguity, and often times misinterpretation?

Expert, director Richards of the Pennsylvania Center for First Amendment and professor of First Amendment studies at Penn. State University told me that there “seem to be no clear answer right now on what Americans should be doing, rather than try to comprehend the law in its entirety or follow historical rulings that bear on issues in contention.”

Trained Journalist, Civil Debater, Mentorship/Youth Advocate, Ph.D. Candidate

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