Colin Kaepernick: You Have the Right to Remain Silent

A couple last points on the Kaepernick Kerfluffle before we relegate him and the NFL to the status of Hula Hoops, Lawn Darts and Pet Rocks in the ash heap of faddish entertainment.

For starters, it seems as though the knee jerk reaction of most of Kaepernick’s defenders, was to make the straw man argument that he has the right of free speech in this country. This is most notable as an argument in search of a problem, since I have seen no one saying he did not. Examining his Seat Splinter Spectacular as a free speech issue, we note in passing the words of my dear sainted mother:

“There’s a time and a place for everything!”

Location, location, locationWe’ll start with the old bromide about crowded theaters. You can’t yell “Fire!” there. Well, actually you can, there are just certain consequences attached to it. If you falsely yell “Fire!” and someone is trampled to death in a stampede for the exits, you may spend the rest of your life shouting whatever you want in the Gray Bar Hotel. Or, you could go home, lock yourself in a bathroom and yell “Fire!” as much as you like, so long as it doesn’t bother the neighbors, or the people you live with don’t have you committed. (Admit It, Dude! That’s pretty crazy!) Maybe you could try going into a crowded theater and shouting something innocuous like “Snickerdoodle!”? It won’t get you arrested, but an usher may escort you from the building.

What have we learned so far? Yelling “Fire!” in your bathroom = free speech, in a theater = no free speech, and yelling anything at all in a theater could bring about unpleasant consequences.

Now if I felt really strong about this, I might take a couple of my redneck friends, we’ll call them “Cletus” and “Chauncey”, (we kinda have to, because those are their names!), and we’ll wave signs and shout and stage a protest on the sidewalk in front of Kaepernick’s house. Sidewalk protest = free speech. But then, if we take a walk up the driveway and say the exact same things, waving the same signs on his front porch…that’s criminal trespass. Not free speech.

Speaking of “waves” if you do the wave in Arrowhead Stadium, you might get on the Jumbotron. If you try to start the wave at your local Presbyterian church, you may be in for a rude awakening. (But at least they’ll pray for your soul!)

All things are lawful for me, but all things are not expedient You have any number of times where you have the freedom to speak, but probably shouldn’t.  You are free to walk into any biker bar in America and insult the biggest dude in the place and then insult his bike and his old lady… once! Once the police come to investigate your disappearance, the biker is free to tell them he beat you to a bloody pulp and buried you in the desert…but he probably won’t.* (See headline) You see there’s a principle involved: Just because you can doesn’t mean you should.  You also have the right to tell your boss what you think of his ideas and if your wife or girlfriend “looks fat” in that dress.

Discretion is the better part of valor Consider the National Socialist Party of America, when they wanted to march through Skokie, Illinois, wearing their swastikas, marching through a village where one in six residents was either a Holocaust survivor or related to one. They, too had a constitutional right to free speech, but where they chose to exercise it was in incredibly poor taste.Ultimately, they ended up marching through Chicago instead. In retrospect, it’s lucky they weren’t shot.**

Or that group that claims to be a church that protests at the funerals of soldiers, holding signs that say things like “Thank God for dead soldiers“. Would President Obama say that they are “starting a dialogue”? Does anyone dispute that they have the right to free speech in America, even though most good people find them and their practices repugnant?

Finally, a note on the character of what constitutes “speech”. Personally, I disagree with the proposition that burning a flag is “speech”. Speech consists of what you say, or what you write. Leaving aside the utter hypocrisy of those who say that global warming constitutes the biggest threat to the planet, yet see no problem in setting a cotton or polyester flag (or in extreme cases, SUVs) on fire, burning the flag is an action, an activity. I also believe that if we can redefine activity as speech, then the guy who punches the face of the person burning the flag is also “making a statement”. But, I digress…

San Francisco, the football home of Colin Kaepernick, voted narrowly to ban public nudity a few years back, but many there and elsewhere across the country view nudity as a form of “free speech”. My question for the NFL is:  If Mr. Kaepernick, or any of the other esteemed legal scholars which constitute NFL teams, decides to flip off the flag, burn the flag or drop trou and ‘moon’ the flag: Will that be a bridge too far? Maybe you could put together and focus group and see if that will stop the hemorrhaging of fans? Or not.

Mike blogs at Proof Positive.

*Note to Tim Kaine: I am not inciting violence here, but using this as an example of what not to do.

**Note to Tim Kaine: I am not inciting violence here, either, merely making note of the high numbers of shootings and firearm related deaths in the liberal Utopia of Chicago.