Monday, July 6, 2020
US flag

A warning: Taking a knee is protected speech

Writing in Education Week, Frank LoMonte, director of the Joseph L Brechner Center for Freedom of Information at the University of Florida, warns schools that punishing student-athletes (or marching band members) for peaceful protests during the national anthem at sporting events is illegal.

Mr LoMonte is a lawyer, and he reads off a litany of Supreme Court cases, going all the way back to Tinker v Des Moines Independent Community School District and West Virginia State Board of Education v. Barnette, cases we have written about on many occasions, to show that any punishment of students, including removal from sports teams, as we have reported is happening, is not likely to stand up to any legal challenge.

But beyond the prospect of legislation that drags all the way up to the Supreme Court, I believe schools have an enormous learning opportunity here. They can educate students about the First Amendment, and even better, include students from around the country. They are part of something bigger than themselves, a true grassroots movement if there ever was one. And I totally meant the pun.

As we reported several years ago, kicking students off a sports team is punishment, and although they don’t have a “right” to be on the team, the school can’t use an unconstitutional rule that they have to stand for the national anthem to show their allegiance to the flag as a basis for any punishment whatsoever. Doing so will put the school at risk of losing in court.

Even though NFL teams may impose penalties for this demonstration, including removal from the team, public schools are considered arms of the government, and they had better not impose any restrictions on free speech, lest they run afoul of the First Amendment, which says what the government can’t do very clearly.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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