Colin Kaepernick and First Amendment Rights

Colin Kaepernick may have anticipated some sort of backlash for his decision to sit in protest during the national anthem last week, but even he probably didn’t foresee the national firestorm that it would set off. The myriad of opinion pieces from journalists and talking heads alike went from debate to contentious name-calling very quick. Kaepernick says he will continue to sit – or kneel – until there is meaningful change; but in the meantime, he has pledged to donate $1 million to charitable organizations who help people affected by racial inequality.

People perceived it as anti-military, unpatriotic and an affront to the American flag. However, it was exactly the opposite of all those things. Voicing one’s opinion, and not fearing backlash or censorship from the government for speaking one’s mind, is one of the great inalienable rights afforded to everyone under the Constitution. Freedom of speech, and the right to protest which coincides, has come before the Supreme Court many times.

right to protest in the supreme court

Perhaps the most hotly contested – in the court of public opinion rather than the Supreme Court – to come before the high bench was Snyder v. Phelps(2011). Phelps and his deplorable cult known as Westboro Baptist Church picketed Snyder’s son’s funeral. His son, who was gay, was a Marine who was killed in action in Iraq. Westboro showed up at his funeral with signs that said things like, “thank God for dead soldiers.” Snyder sued Westboro on the grounds of defamation, invasion of privacy and intentional infliction of emotional distress. However, in an 8-1 majority decision, the Court ruled that Snyder was a matter of public concern, e.g., homosexuals in the military. Justice Samuel Alito, in the lone dissenting opinion, argued that a funeral and the family’s grief were a private matter, and therefore First Amendment rights weren’t applicable.

Then there is perhaps the most famous right-to-protest case of them all, Texas v. Johnson(1989). Johnson burned an American flag in protest of the Reagan administration’s policies. He was originally sentenced to one year in jail and received a $2,000 fine. When the case reached the Supreme Court, they upheld the overturning of that conviction in a 5-4 decision. The majority ruled that even though many took offense to his actions, that does not justify the silencing of speech, which they found to be political in nature.

Your rights as a protester have been challenged before, and while there are limitations, it has remained an inalienable right. The limitations include: conduct. Does your protest purposefully incite violence? Also, is your protest creating a disruption, such as blocking traffic? Are you violating any noise ordinances, or staging your protest on private property? Then you may be subject to limitations. Remember, the First Amendment protects citizens from the government, not so much citizens from other citizens. But so long as you aren’t violating any of these provisions, you have a right to say what you want to say, without worry of censorship. People are going to disagree with you, but if your protest is of a peaceful nature such as Kaepernick’s, then you cannot be criminally charged for your beliefs.