The NFL's decision to fine teams when a player kneels during the national anthem is a particularly bad policy, one that the American public should strongly oppose.
Let's be clear on the reason for its particular badness, and why it particularly deserves our scorn.
I give you: five things that are not reasons, and one thing that is.
(1) Has the policy earned our particular scorn because it requires certain players to violate their own consciences, by making them express a certain message even if they do not agree with the message?
This cannot be the reason, because it's not quite accurate. Under the new rule, players are permitted to remain in the locker room during the national anthem. The NFL says they will not punish its employees merely for declining to participate in the NFL's preferred expressive act. The punishment is exacted only if the employees engage in a particular different expressive act. The employees are not required to express the NFL's message; they are, rather, forbidden to express a different one.
Is there a categorical difference? Coming from my philosophical background, I say yes. The duty to speak the truth, like any positive duty, does not compel us at every moment; for proportionate reasons, we sometimes rightly refrain from speaking and acting in truth. This is different from our duty not to tell lies, which is always in force. The players are not, technically, compelled to violate their consciences, because they are not compelled to engage in the NFL's preferred expression. It would be a different matter if the rules did not permit players to abstain; but they do.
That permission to abstain outright from appearing during the anthem also probably sufficiently (under employment law) accommodates players who might have a religious objection to honoring the flag.
We shall have to look for another reason.
(2 )Has it earned particular scorn because it violates the players' First Amendment rights?
No. It does not violate them.
The First Amendment protects us from government-compelled speech (including acts that signify meaning, like "stand and show respect.") The NFL is not the government, and so the First Amendment doesn't constrain it, but rather protects it as it protects all our businesses and employers. Private entities, such as the NFL, cannot violate the First Amendment by requiring a certain kind of speech as a condition of employment, nor by prohibiting a certain kind of speech. So even if the rules did compel the players to be on the field standing during the anthem, it would not be a violation of the First Amendment.
(3) Even if the NFL has benefited from taxation structures and public funds?
No. It does suggest a means by which the scorning public can react by withdrawing government support or by making that support conditional on different behavior; but government support doesn't turn them into the government. And so the special indignation that Americans should properly have towards First Amendment violators is still not in play.
This isn't the reason.
(4) Has it earned particular scorn because the policy is an example of bad faith on the part of management in a labor dispute?
It's still unclear whether any aspects of the NFL's policy violates the collective bargaining agreement. The players are unionized, and the union can make use of an established process to challenge perceived violations. In this sense, it's no different from any other rules that an employer may try to push through only to find later that the collective bargaining agreement will not permit it; and perhaps, even if challenged, the policy will be upheld. Furthermore, if it is upheld, the players have another recourse: can bring the issue to the table the next time collective bargaining begins. So: this isn't the reason why we should be particularly scornful of this rule.
(5) Has it earned our scorn because it represents a kind of retribution for unpopular or offensive speech?
No. The mere fact that it is retribution for speech is not enough to earn most people's scorn.
It would seem that m0st of us do not scorn people who exact retribution from speakers on account of disliking the speech, provided that the retribution is itself legal. Recall this xkcd cartoon, which by all accounts was shared by people across the political spectrum:
This cartoon clearly asserts, and even honors, a right of private actors to exact retribution for speech that the private actors view as wrong.
The value expressed by the cartoon, like so many clearly stated values, cuts multiple ways. Just as I don't have to listen to or host speech that I think is bullshit---just as I have a moral right and a First Amendment right to react honestly with my own speech and meaningful acts --- the NFL has that, too. The NFL doesn't have to listen to what protesting players say; it doesn't have to host them while they say it. They are not shielded from criticism of their protests, nor from financial consequences; they may be yelled at, boycotted, fired; if the NFL thinks they are being assholes, the NFL gets to show them the door.
No, in fact, the NFL, like any other business, is itself protected by the First Amendment. They get to send the message they want to send. That's their right of expression.
The NFL's policy is an expressive act. The primary effect of its permitting players only a single visible response to the United States flag and national anthem is not, actually, to silence the players. I mean, they're trying to, but not very effectively.
No, the primary effect of this policy is the promulgation of a specific message that the NFL itself wants to express.
And that's where we come to the reason why the NFL policy deserves our particular scorn:
The reason the NFL policy deserves our particular scorn is because of the content of the NFL's own message.
By enacting this policy, the NFL says:
- There is only one way to love, to will good for, to be grateful for, this country.
- There is only one way to respond to a symbol that represents the country's values.
- Only uncritical love for the republic counts as respect, or as patriotic, or as honorable.
- To peacefully demonstrate a desire for justice for all fails to respect the republic for which it stands.
And there's something especially bad about this message.
It is not just a political message.
It is an anti-American message.
It is uniquely anathema to fundamental American values.
+ + +
Indeed, employers have the right to send all sorts of messages. They can and do send messages that are false, dangerous, harmful, or downright evil. It happens all the time. Of course, the thing about merely bad speech is that honest people can honestly disagree about what constitutes bad speech. Some businesses say things that I think are good and other reasonable people, who come at life from a direction different from mine, think are wrong. Other businesses say things that I think are wrong and other reasonable people think are good. I can object, using my own speech. They can object, using theirs. This is, generally, okay, and consistent with the fundamental values on which the nation was founded. It is one of the ways that we give and take and push and pull against one another's ideas, a way we come to some equilibria where we can live next to one another in relative peace and freedom to go our own ways.
But---and I get to say this, because it's my thought---
This message? It is not okay, and it is fundamentally un-American, precisely because it attempts to claim monopoly over American-ness.
The NFL is trying to speak for the whole country, and trying to say what love of the country means, and how it must be expressed.
It's trying to control the narrative about how to love, and how not to love, the United States.
And it's using the symbol of the entire United States to do it.
They are trying to enact a lie in my name, and in the name of everyone in the country.
I say we should not leave the NFL's message unchallenged.
I say we should start showing them the door.
(Photo of San Francisco 49ers kneeling by Keith Allison under a Creative Commons license.)