In what was billed as his final "Hail To The Chief" speech, President Barack Obama - on December 6th, 2016 at MacDill Air Force Base in Tampa, Florida - reminded us that the United States of America is "a nation that believes freedom can never be taken for granted...and that each of us has a responsibility to sustain it. The universal right to speak your mind and to protest against authority...to live in a society that's open and free...that can criticize a president without retribution...a country where you're judged by the content of your character, rather than what you look like, or how you worship, or what your last name is, or where your family came from...that's what separates us from tyrants and terrorists." I carry President Obama's speech with me at all times.
But to our 44th president's inspirational words, I add that all Americans - and that includes professional football players - have the right...and the freedom...to not stand for our National Anthem...and to not pay tribute to our American flag...if they choose not to honor the "Red, White and Blue."
In his last speech to America's armed forces, President Obama encouraged our military servicemen and servicewomen to "Remember what that flag stands for."
I'm old enough to recall when our "Stars and Stripes" were set aflame by certain citizens, as a method of protest during 1960s demonstrations against the Vietnam War. It was not a practice that I in any way supported then, nor do I today. However, I did support...and I continue to think as such, half a century later...that any American who has the sick desire to light a match to "Old Glory" - as disgraceful as that behavior would be - he or she has the right and the freedom under our nation's most treasured document to express himself or herself in a manner that is protected by the United States Constitution.
It wasn't until 1989 when the U.S. Supreme Court ruled in Texas v. Johnson that because of the First Amendment, it is unconstitutional for a government - whether it be federal, state or municipal - to prohibit the desecration of our national flag. The ruling was reaffirmed in 1990 in U.S. v. Eichman.
In their decisions, the justices concluded that the American flag has a status as "symbolic speech." The highest court in our land determined that "free speech" doesn't just encompass talking and writing, but any form of symbolic expression, including flag burning. Accordingly...not standing for our National Anthem understandably falls in to the same category.
But on Wednesday, May 23rd, 2018, the National Football League - in essence - "gave the finger" to the U.S. Constitution and the U.S. Supreme Court. NFL Commissioner Roger Goodell laid down the law for his athletes with his order that any team will be subject to a fine if one of its players does "not stand and show respect for the flag and the anthem."
Although the NFL's new policy doesn't specifically forbid personnel from "taking a knee"...Goodell's command does effectively restrict anyone...who represents the NFL...who might be tempted to kneel during the playing of The Star Spangled Banner...to "stay in the locker room or in a similar location off the field until after the anthem has been performed."
The truth of the matter is...NFL players - dozens of whom during the 2016 and 2017 seasons had, in fact, "taken a knee" during the National Anthem - were not attempting to be disrespectful. The players have persistently echoed that the kneeling had nothing to do with either our flag or our anthem. The protesters focus was on injustices.
Former San Francisco 49ers quarterback Colin Kaepernick - whose actions ignited this controversy - says that his kneeling was meant to "stand up for people that are oppressed." Some players chose to raise their fists in silent solidarity, instead of kneeling. But that form of body language is not included in the new NFL policy.
Kaepernick and his former teammate, Eric Reid - who also kneeled - have filed grievances against the NFL. Kaepernick - a free agent - claims that football owners conspired to keep him off the field. He has not been on the roster of a NFL team since he elected to opt out of his contract with the 49ers in 2017. That being said...San Francisco's management subsequently announced that they would have released Kaepernick if he hadn't cut ties with the club on his own. Reid also remains unemployed.
Kaepernick has stated that he and Reid "came to the conclusion that we should kneel, rather than sit, as a peaceful protest. We chose to kneel because it's a respectful gesture. I remember thinking our posture was like a flag flown at half-mast to mark a tragedy. It baffles me that our protest is still being misconstrued as disrespectful to the country, flag and military personnel. We chose it because it's exactly the opposite." Kaepernick - who is bi-racial - was first, two years ago, to not stand for the National Anthem, in an effort to protest racial oppression, including alleged police brutality against African-Americans.
The National Football League Players Association have their athletes' backs. In defending players who kneeled, the union says, "NFL players have shown their patriotism through their social activism, their community service, in support of our military and law enforcement, and yes...through their protests to raise awareness about the issues they care about." The Players Association will "review the new 'policy' and challenge any aspect of it that is inconsistent with the collective bargaining agreement."
Along with their criticism of the NFL ruling...the Players Association chastised the League because the union was blindsided when Commissioner Goodell "chose to not consult" with the Association before making his decision.
Furthermore...although the NFL insists the policy was a "unanimous" decision by team owners, and that all thirty-two club owners approved the League ruling...that is not true. Based on a report from ESPN, Goodell's announcement that all team owners voted in favor of the policy is in plain English...a lie. Perhaps Goodell has been taking lessons from Donald Trump.
ESPN reports that there was no actual vote by team owners, which would be standard practice for such an issue. ESPN says the NFL did "a little informal polling"...but no vote. Anyway, whether they call it a vote or a poll, not every club owner agrees with Goodell's decision. San Francisco 49ers president and chief executive officer Jed York abstained, and ESPN says Oakland Raiders owner Mark Davis didn't respond either. Plus, the chairman and CEO of the New York Jets is not in step with Goodell. Christopher Johnson says his team will pay any fines and not take the money out of athletes' paychecks. Johnson says, "There will be no club fines or suspensions, or any sort of repercussions. If the team gets fined, that's just something I'll have to bear." The NFL has not yet specified the amount of the fine, but Johnson is adamant that "I never want to put restrictions on the speech of our players."
So who's running the NFL...Roger Goodell...or Donald Trump? To me, it sounds as if Goodell is nothing more than a Trump puppet.
At a Huntsville, Alabama rally in September 2017, Trump was downright vicious when he called for team owners to kick a player out of the end zone and out of the stadium. "Wouldn't you love to see one of these NFL owners - when somebody disrespects our flag - to say...'Get that son-of-a-bitch off the field right now, out, he's fired. FIRED!'"
And on Thursday, May 24th, 2018, Trump told Fox News..."You have to stand proudly for the National Anthem or you shouldn't be playing. You shouldn't be there. Maybe you shouldn't be in the country."
Who the hell does Donald Trump think he is? I'm sure you remember Trump's words to Billy Bush on that infamous Access Hollywood video. In "The Donald's" mind it's okay for him to "grab (women) by the p--sy" because "when you're a star, they let you do it. You can do anything." But apparently, it's not okay with Trump when football players don't stand for our National Anthem, as a means to protest the abuse of African-Americans.
But none of this totalitarian tactic is new for Donald Trump. Shortly after the presidential election, Trump tweeted on November 29th, 2016..."Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" After making that kind of a statement, how can any Republican believe that Trump is fit to be president of the United States? He undoubtedly has no clue about certain laws of our land that define our freedoms.
By its new policy, the NFL has opened the door for our nation's "narcissist-in-chief" to claim victory. He's gotten his way...by Commissioner Goodell bowing down to Trump and doing - at least in part - what Trump wanted done. However...by fearing and giving in to Trump's heavy hand is not the American way...and makes the NFL appear to be subservient to a dictator.
Roger Goodell and the National Football League have taken our country back nearly thirty years. The NFL was careful in constructing the new policy so that the players will not be fined by the League...the teams will be. But whether it's an individual or a club, the NFL is still acting in a manner that crosses the line of scrimmage between what is right and what is wrong.
Let me be crystal clear with my readers, especially those Republicans - some of whom I have discovered have an attention span of a gnat. I truly don't mean to be cruel with that analogy, but I frequently receive comments from conservative readers when it's obvious they haven't read my column carefully. Due to that, I don't want anyone accusing me of lacking patriotism because they think I am condoning disrespect towards the American flag and our National Anthem. After all, I always stand when The Star Spangled Banner is performed and I place my right hand over my heart. Since childhood, the 4th of July has been one of my favorite holidays, though my reasons have nothing to do with barbecues and fireworks, but the birth of our nation...our independence from Great Britain in 1776...and the history of our Founding Fathers who created our republic and the democracy that we dearly cherish.
I own several American flags that were flown on special occasions over the United States Capitol in Washington, DC...and I have given, as gifts, many other American flags that have also waved proudly over the building where our House of Representatives and our Senate call home. So if I ever witnessed another person setting fire to an American flag...I'd be furious. But my embrace of the U.S. Constitution would overpower my anger. As someone as American as apple pie, there is nothing that tops my list of freedoms other than our First Amendment. And if a football player or anybody else wants to stay seated or "take a knee" during the presentation of colors and the musical accompaniment of Francis Scott Key's lyrics, then that is a right that no one - not Roger Goodell, not Donald Trump, not any other single individual - should be allowed to take away from any American.
When we give in to someone who steals one of our most precious freedoms, straight out from under us...then that is the beginning of tyranny. And after nearly two-hundred-forty-two years...we cannot let that happen. We must block...and we must not fumble. Otherwise, it will be people like Roger Goodell and Donald Trump...who score the touchdowns. And the rest of us will still be looking for a first down.
And that's The Controversy for today.
I'm Gary B. Duglin.
"We'll talk again."
The Controversy is a publication of GBD Productions.
Founder and Editor-In-Chief of The
Controversy is Gary B.
Duglin.
Now please express your personal
opinions by following the instructions above. And thank you for reading The Controversy.
Photo credit: Shutterstock.com (The Star Spangled Banner and American Flag)
Copyright 2018 Gary B. Duglin and
TheControversy.net. All Rights Reserved. This column may be freely shared
among individuals, but it may not be reprinted or republished in any medium
without the express written consent of Gary B. Duglin. Interested parties may
contact The Controversy.
Broadcast, cable, satellite, and other forms of media are welcome to quote Gary
B. Duglin by crediting him and The
Controversy.
I hope the players continue what they are doing. Stomping down free speech by Trump is so way beyond what this country stands for. Trump wants controversy to change the conversation away from him and his dastardly deeds. Trump sold his soul to the Russians and now his fake outrage about things such as this are so pathetic and transparent. He has no care for this country and it's freedoms. He cares about one thing: himself and how he can enrich himself at the expense of anyone else and or country. He sees himself as king and he has his hands in the "cookie jar" everyday and he has a party who is allowing him to do whatever he wants to do. Shameful. He's going to take them off the cliff and they are willing to go with him. Ironically everything he falsely accused Hillary of doing he himself is doing. Shame on NFL for giving in to Trump. I hope the players remain strong in their beliefs and continue to do what they are doing. Trump's actions just reveal even more how the American people need to "take a knee" on his destructive agenda for our country.
ReplyDeleteExcellent views, JW. Thank you for your comments. Love your line "Trump's actions just reveal even more how the American people need to 'take a knee' on his destructive agenda for our country." Thanks again. GBD
DeleteGary the players know well what the flag stands for and everyday Trump's actions does more to disrespect the flag than the players protests. The players are protesting those who disrespect and ignore what the flag does stand for. Until those wrongs are made right I hope they continue to take a knee for America and for the rights and respect of all people. The worse offender is sitting in the White House and everyday he tears away a piece of the Constitution. We should be thankful for the courage of those who do take a knee and draw attention to the real injustices experienced each day. Great article Gary.
DeleteThank you very much, JW, for your kind words about my column. I appreciate your compliment and thanks for reading and responding to The Controversy. GBD
DeleteFake news as usual. Your rights mean the GOVERNMENT can't prevent you from doing things. An employer, such as the NFL, can hold you accountable for whatever they want. Your overly long blog post is confusing RIGHTS with employer rules. When you are at work you don't have the right to do whatever you want just because it's LEGAL. You think the cashier at the grocery can just use profanity constantly with the customers with no repercussions because it's their RIGHT? You think TV hosts can go on personal rants on the air because it's their RIGHT without getting removed from their show? You think an office worker can wear a shirt with a swastika on it because it's their RIGHT?
ReplyDeleteI'm sure you'd be singing a different tune if all the white players in the NFL were doing a Hitler salute. That's their RIGHT as well, but the NFL won't allow that either.
If these employees of the NFL aren't happy with the way they are expected to behave at work then they can go find another job just like anybody else in this country.
I really don't enjoy labeling somebody a moron...but YOU...are a moron.
DeleteAs I noted in my column above, it's readers like you who do not take the time to actually read my editorial carefully. As such, you don't seem to get it.
I never said that the NFL couldn't order its policy. However, Roger Goodell has indeed stomped on the "rights" of every person who is employed by the National Football League.
Your analogies above are ludicrous. This is not a discussion about profanities. And for you to compare standing for the National Anthem to the heinous, evil crimes of Adolf Hitler makes you not only a moron, but someone who is totally out of touch with reality.
You further didn't comprehend that I don't agree with what the football players were doing. If you read my commentary with an open mind, you will recognize my position. What the players did - as I wrote in my column - was indeed "disrespectful" towards the Star Spangled Banner and the American flag. But those players do have the "right" under the First Amendment to stay seated...or to even "take a knee." Just as anyone has the "right" to burn our flag. I don't agree with it...and I don't support anyone who would...but as an American...they have that "right." And thank God that they do.
GBD
As employees they don't have the right to not do what they are expected to do as a condition of their employment. Like I said, they also have the right to do a Hitler salute, so if the NFL allows some players to express their free speech then it has to allow all of them to. This is why employers have their own rules. When I watch football I don't want to see people disrespecting the flag just as you don't want to see them doing a Hitler salute. It's bad for business and the NFL has every right to enforce rules that support their business.
DeleteI would certainly hope that no decent person would want anyone "doing a Hitler salute." And when it comes to our National Anthem or the American flag, I would hope - as I wrote in my column - that every American would give the Star Spangled Banner and our flag the respect it deserves. But if they don't want to, they have the "right" not to. However, as much as I feel - as I also wrote in my column - that "taking a knee" disrespects our National Anthem and our flag, the NFL players have stated that their intent was NOT to disrespect the flag or our Anthem. However, the U.S. Supreme Court says they have the right to be disrespectful under the First Amendment to the U.S. Constitution, should they choose to do so. And although the NFL can create their own rules for their employees...it still means that Roger Goodell is kissing Donald Trump's big fat ass and, therefore, both have "given the finger" to our Constitution and our Supreme Court.
DeleteGBD
The US Constitution is a contract between the people and the United States Government, not between you and your employer. The government cannot compel you to stand and respect the flag but your employer can make it a condition of employment while you are at work. The NFL and or Roger Goodell are not as you said “kissing Donald Trump's big fat ass” they are trying to protect their own. By many industry analyst the NFL, their TV partners and other partners may have lost $500,000,000 in revenue in the 2017 season due to the kneeling, lowest TV ratings in years. The American people have spoken they have turned the channel away from teams that had players kneel, and even turned off the NFL totally. So the NFL made a business decision to protect their brand. By the way I think the US Supreme Court was wrong in their decision about desecration of the American Flag.
ReplyDeleteThe response to the above reader will be in THREE parts.
ReplyDeletePART ONE OF THREE
To the "Anonymous" reader above, please read the following. Nowhere is the United States Constitution defined...or described...as "a contract."
What is the US Constitution and what does it do?
The Constitution of the United States established America's national government and fundamental laws, and guaranteed certain basic rights for its citizens. It was signed on September 17, 1787, by delegates to the Constitutional Convention in Philadelphia.
Constitution - Facts & Summary - HISTORY.com
www.history.com/topics/constitution
Note that History.com says...the U.S. Constitution "guarantee(s) certain basic rights for its citizens." Note the word..."rights."
What is the Constitution and what does it mean?
The United States Constitution is the supreme law of the United States. The Constitution, originally comprising seven articles, delineates the national frame of government. ... Others address issues related to federal authority or modify government processes and procedures.
United States Constitution - Wikipedia
https://en.wikipedia.org/wiki/United_States_Constitution
Note that Wikipedia describes the U.S. Constitution as "the supreme law of the United States." That means it rules over all other laws...including "condition(s) of employment."
What is the Constitution and why is it important?
The Constitution is important because it protects individual freedom, and its fundamental principles govern the United States. The Constitution places the government's power in the hands of the citizens. It limits the power of the government and establishes a system of checks and balances.
What is the importance of constitution? - Quora
https://www.quora.com/What-is-the-importance-of-constitution
Note that Quora describes the U.S. Constitution as "important because it protects individual freedom." That means freedom of speech. And as I wrote in my column, the U.S. Supreme Court ruled that "freedom of speech" under the First Amendment of the U.S. Constitution includes all "symbolic speech." As I wrote in my column, "In their decisions, the justices concluded that the American flag has a status as 'symbolic speech.' The highest court in our land determined that 'free speech' doesn't just encompass talking and writing, but any form of symbolic expression, including flag burning. Accordingly...not standing for our National Anthem understandably falls in to the same category."
GBD
END OF PART ONE OF THREE
PART TWO OF THREE
DeleteYour remarks are ludicrous...if not totally laughable. By you saying that "your employer can make it a condition of employment while you are at work" means that the employer is going against the U.S. Constitution and the U.S. Supreme Court. Perhaps the law allows that in this instance, but it shouldn't. And that's why some team owners have already stated that they will pay the fines and not hold back money from players' salaries if they still choose to "take a knee." Again - as I've noted many times in my column and in responses to readers above, I don't agree with "taking a knee." I think it's disrespectful. If you read my editorial carefully, you will see that I do feel that the players who do not stand for the National Anthem and our flag are wrong in doing so. However...they have that "right."
No...Roger Goodell is indeed "kissing Donald Trump's big fat ass." True, the NFL claims to be losing a whole hell of a lot of big bucks...but do we actually trade a citizen's "rights" so that the bosses in the proverbial "ivory tower" can make a dollar...or even 500-million dollars? That's not how America was built. That's greed.
GBD
END OF PART TWO OF THREE
PART THREE OF THREE
DeleteAs for your comment that you "think the U.S. Supreme Court was wrong in their decision about desecration of the American flag"...again I say...the High Court did what our Founders intended. That ALL Americans have "freedom of speech." And that "freedom of speech" doesn't just include talking or writing. I really wish some of you would get that.
GBD
END OF PART THREE OF THREE
I am a different person that the original poster... reading your responses clearly shows that you really don't understand how things work. You just reply and call everybody names but you don't understand that what you are saying is incorrect. Your employer can make ANY rules about your employment. Your rights in the constitution are between you and the GOVERNMENT, not your EMPLOYER. Many people don't understand this (you included). Yes, you can do whatever you want LEGALLY if it's protected by the constitution, but that doesn't mean you are protected from the consequences of what you did at WORK.
DeleteWe have a perfect example of this right now with Roseanne. Based on everything you say here you better not be supporting the firing of Roseanne. If you are you are the biggest hypocrite of all. She used her RIGHT to free speech and was fired by her EMPLOYER because they didn't like what she did. This is the exact same thing as the NFL. You can't have it both ways. Either you think both the NFL and ABC are fine enforcing their own rules (which is the correct answer), or you think NEITHER should be allowed to enforce rules, in which case Roseanne should not have any problems from her EMPLOYER. I'm sure you'll come back and say you didn't like what Roseanne did and it was so different from the NFL players, but the content of the free speech is irrelevant. Some may agree with what is done or said and some may not. Lots of people don't see anything wrong with Roseanne and feel the NFL players are disrespecting the country, others, like you think the opposite - either way the employer can enforce whatever rules they want.
The response to the above reader will be in FIVE parts.
DeletePART ONE OF FIVE
It always amazes me when one of my readers tells me that I "don't understand how things work" when it is the reader that clearly doesn't understand how things work. The fact of the matter is the NFL's policy to ban players from "taking a knee" is flatly illegal. Note this, though, I was careful in my column to not use the words "illegal" or "not legal." I wanted to wait until someone like you used "illegal" in a response...and then I would write this response and the paragraphs that follow. But before I educate you, let me once again say that I do NOT agree with any athlete...or any other American, for that matter...who does not stand for the National Anthem and our flag. I stated in my column that I feel it is disrespectful...even though the players did not "intend" for it to be disrespectful. If you read my column carefully, you will note that I am not in favor of the actions that have been performed by the NFL players...but I do support their "right" to do so.
Here is why the NFL's policy is NOT legal. Benjamin Sachs is the Kestnbaum professor of labor and industry at Harvard Law School. Sachs writes the following for Vox..."NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines. The policy is illegal — for a host of reasons. The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith. If, as the NFL Players Association says, the employer implemented this change on its own, the policy is flatly illegal for that reason and should be rescinded by the league. But the new policy has other, deeper problems. Just this week, the Supreme Court issued a major decision that clarifies exactly why the players’ anthem protests are protected by our labor laws. In this decision, Epic Systems Corp v. Lewis, the Court concludes that the National Labor Relations Act is, at its core, designed to “protect things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace.” Put plainly, the Court holds that collective actions engaged in by employees at work are the heart of labor law’s concern. Some might object that labor law does not protect these protests because they’re about something other than work: They’re about police brutality, or systemic racism, or the president’s view of what patriotism means. Of course, in some sense this is exactly what the protests are about. But in a more direct, literal sense, what the players are protesting is the requirement that they stand during the national anthem. That’s what the protest is: a refusal to stand. Now that the owners have made it a workplace rule to stand during the anthem or stay in the locker room, any player who takes the field and takes a knee is protesting an employer rule. And that is unquestionably protected by federal labor law."
GBD
END OF PART ONE OF FIVE
PART TWO OF FIVE
DeleteHere is the continuation of Professor Sachs' remarks.
"Finally, there is a serious free speech problem with the owners’ rule. In general, the constitutional right to free speech applies only to censorship by government entities, not to what a private sector employer like the NFL does. But there are two reasons why the players have a viable free speech claim. The first is that the president of the United States has been actively involved in the league’s decision-making process. In an earlier round of the protest dispute, (Donald) Trump called on the league to discipline Colin Kaepernick for his leadership of the anthem protests and threatened to use the tax code to punish the NFL if they allowed them to continue. Mike Pence walked out of a 49ers game where anthem protests were planned. What’s more, the owners have made clear that their adoption of the new rule was made in response to presidential intervention: They believe that if they do not ban the protests, the president will continue to make the protests a national issue and thereby negatively affect the league’s income stream. As Dallas Cowboys owner Jerry Jones told Sports Illustrated, Trump “certainly initiated some of the thinking, and was a part of the entire picture.” When the president and vice president of the United States are this intimately involved in encouraging a private employer to adopt a workplace rule, the Constitution should have something to say. Applying the Constitution in this context is justified but would require judges to break some new legal ground. But even if the courts refuse to apply the Constitution directly here, the players ought to have at their disposal another powerful legal tool. The law of most states declares that employers may not fire, or otherwise discipline, employees for reasons that violate the state’s public policies. That’s why, for example, employees cannot be fired for fulfilling jury duty, or for refusing to perjure themselves on the employer’s behalf. If an employee is disciplined for one of these reasons, he is entitled to sue the employer (through what’s called a public policy tort). It is hard to imagine a public policy — in whatever state you choose — more important than the policy in favor of free speech on matters of public concern. Indeed, this public policy is enshrined in the constitution of every state in the nation. Given that freedom of speech is one of our most important public policies, courts should follow the lead of the famous Novosel decision, which held that an insurance company worker who declined to lobby legislators for a particular bill as the company had requested, and who stated his opposition to that bill, could not be dismissed. The upshot of that decision is that an employer that disciplines an employee for engaging in peaceful speech has disciplined an employee in violation of public policy. We have players engaged in fully peaceful speech acts, on a subject of core national importance, and in a context where they are literally debating with the president and vice president of the United States. Given these facts, if the NFL takes action against the players, the league will violate public policy and should accordingly be vulnerable to legal action."
GBD
END OF PART TWO OF FIVE
PART THREE OF FIVE
DeleteNow I hope that YOU..."understand." So in this case - and in others as Professor Sachs explains - football players - or any other such employee - is indeed "protected from the consequences of what you did at WORK."
GBD
END OF PART THREE OF FIVE
PART FOUR OF FIVE
DeleteAs far as Roseanne Barr. I am currently writing that column and hope to have it published later this week. However...you are mixing apples and oranges. Barr directly used a racial slur towards an individual. THAT...is racism. I support ABC's firing of Barr and the cancellation of her show. But when dealing with the American flag - and in this case, an added part being the National Anthem - the U.S. Supreme Court has ruled - as I noted in my column - that "symbolic speech" is protected as a right under the First Amendment. So yes...what Roseanne Barr did IS "different" because her "speech" was racially motivated. Some legal scholars have stated that Barr's tweet referring to Valerie Jarrett, an African-American, as an "ape" may be be considered a "hate crime" under the Civil Rights Act of 1968. With Barr's words, she not only racially slurred one person, but an entire race of people...including those who worked on her television show, at her network, at her studio, plus her advertisers and the people who watched her show. What the NFL players are doing by kneeling is completely different.
GBD
END OF PART FOUR OF FIVE
PART FIVE OF FIVE
DeleteOnce again I'm going to hope that YOU...now "understand" that - in a case such as the NFL and the National Anthem/American flag...the employer can NOT enforce whatever rules they want...especially when it regards to labor laws. However, as I noted in the first part of this response to you, I never said what the NFL did was "illegal." Professor Sachs has, but my point all along was that the NFL has "given the finger"...or perhaps, if you prefer, "spit in the eye" of the U.S. Constitution and the U.S. Supreme Court. I wanted to let a Harvard Law School professor...a respected legal scholar...tell my readers about the legal...or illegal...aspect of this entire matter. Also, I don't think some of my readers realize that before I write ANY column, I check my facts, I do necessary research, and I've always got something in my back pocket - such as in this case, Professor Sachs - to back up what I write. I think I've proved my point...or, at least, in the case of the NFL...Harvard Law School Professor Benjamin Sachs has - in part - done it for me.
GBD
END OF PART FIVE OF FIVE
Benjamin Sachs professor of labor and industry at Harvard Law School is wrong when he says “The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith.” The NFL players in the CBA (Collective Bargaining Agreement) agreed to give the Commissioner the sole authority to make these decisions on disciplinary issues like this without consulting with NFLPA or the team owner. Article 46 of the NFL CBA authorizes the Commissioner to impose discipline for “conduct detrimental to the integrity of, or public confidence in, the game of football.” . Lower ticket sales, lowest TV ratings in years and loss of $500,000,000 definitely shows that the act is “conduct detrimental to the integrity of, or public confidence in, the game of football.” As for the First Amendment, the Federal Courts have already ruled on free speech in the work place. Should be case closed!
DeleteThe response to the above reader will be in THREE parts.
DeletePART ONE OF THREE
Of course you don't agree with one of the most learned and most respected legal professors in the country. Of course you don't agree with a Harvard Law School professor who deals directly with labor and industry. Your quote regarding the Collective Bargaining Agreement is obviously not correct since The Players Association will "review the new 'policy' and challenge any aspect of it that is inconsistent with the collective bargaining agreement." And their executives believe that the NFL policy is "inconsistent" with the CBA.
As for the First Amendment and your comment on "free speech in the workplace"...I am going to repeat what I included above from Professor Benjamin Sachs. "But there are two reasons why the players have a viable free speech claim. The first is that the president of the United States has been actively involved in the league’s decision-making process. In an earlier round of the protest dispute, (Donald) Trump called on the league to discipline Colin Kaepernick for his leadership of the anthem protests and threatened to use the tax code to punish the NFL if they allowed them to continue. Mike Pence walked out of a 49ers game where anthem protests were planned. What’s more, the owners have made clear that their adoption of the new rule was made in response to presidential intervention: They believe that if they do not ban the protests, the president will continue to make the protests a national issue and thereby negatively affect the league’s income stream. As Dallas Cowboys owner Jerry Jones told Sports Illustrated, Trump “certainly initiated some of the thinking, and was a part of the entire picture.” When the president and vice president of the United States are this intimately involved in encouraging a private employer to adopt a workplace rule, the Constitution should have something to say. Applying the Constitution in this context is justified but would require judges to break some new legal ground. But even if the courts refuse to apply the Constitution directly here, the players ought to have at their disposal another powerful legal tool. The law of most states declares that employers may not fire, or otherwise discipline, employees for reasons that violate the state’s public policies. That’s why, for example, employees cannot be fired for fulfilling jury duty, or for refusing to perjure themselves on the employer’s behalf. If an employee is disciplined for one of these reasons, he is entitled to sue the employer (through what’s called a public policy tort). It is hard to imagine a public policy — in whatever state you choose — more important than the policy in favor of free speech on matters of public concern. Indeed, this public policy is enshrined in the constitution of every state in the nation. Given that freedom of speech is one of our most important public policies, courts should follow the lead of the famous Novosel decision, which held that an insurance company worker who declined to lobby legislators for a particular bill as the company had requested, and who stated his opposition to that bill, could not be dismissed. The upshot of that decision is that an employer that disciplines an employee for engaging in peaceful speech has disciplined an employee in violation of public policy. We have players engaged in fully peaceful speech acts, on a subject of core national importance, and in a context where they are literally debating with the president and vice president of the United States. Given these facts, if the NFL takes action against the players, the league will violate public policy and should accordingly be vulnerable to legal action." But of course, you don't agree with Professor Sachs.
GBD
END OF PART ONE OF THREE
PART TWO OF THREE
DeleteHere's my prediction, though...and I can guarantee you that when push comes to shove, the teams and players will get their way...either through the Players Association and/or through the U.S. Supreme Court. And once the Senate is controlled by the Democrats, and that'll be when certain justices will retire...we'll get some more liberal judges on the bench who will do what is right...by protecting Americans' rights. So in many ways...there is no "should be case closed." Not yet.
GBD
END OF PART TWO OF THREE
PART THREE OF THREE
DeleteOh and one more thing...Colin Kaepernick and Eric Reid are eventually going to walk away with a bundle of bucks by not being hired to play by any NFL team. Their rights have not only been violated but they have been blacklisted. And blacklisting is a crime. Kaepernick and Reid have a case that the NFL has violated Unfair Labor Practice laws. This is not the 1940s and 1950s where Senator Joe McCarthy accused members of the entertainment industry of being Communist sympathizers. This is why Donald Trump is going to find himself in bigger trouble than he is already in because of how he treats the press and the media in general. As a result of "McCarthyism", Hollywood studios and other show business companies blacklisted people who had worked in motion pictures, television and radio broadcasting. It is against the law for companies to deny employment to people who are named on blacklists. And that is what the NFL owners are doing by not letting Kaepernick and Reid play. This whole issue is far from over, as there will be criminal and civil cases. "Case closed," as you say. No way. No bloomin' way.
GBD
END OF PART THREE OF THREE
James Madison called the US Constitution a “Social Contract” between the government and the people of the United States. The US Constitution is the greatest governmental document ever written; it was and is still not perfect, that is why the Founders gave us the means to amend it. As for the First Amendment it states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Check out the first 5 words “Congress shall make no law” that doesn’t mean a private person or company can’t have rules on their property, see the ruling by the Federal Appeals Court: “. . . Dixon may have a constitutional right to fly the Confederate flag, however, that right is not unlimited. An individual may not exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.” (Dixon v. Coburg Dairy, Inc., No. 02-1266, 4th Cir., 2003). Basically the Court said you do not have a unlimited right of free speech or expression on private property or in a private work place.
ReplyDeleteMy remarks are not ludicrous or laughable; the courts have upheld time and time again that an employer can tell you what to wear what to say, more importantly what you can’t wear or what you can’t say while on the job.
You can only give your opinion on what our Founders intended, I have a different opinion and believe the Supreme Court should have given an exception to the "freedom of speech” right to protect our American flag, there are many exception to the right, you can’t yell fire in a crowded theater, you can’t claim to have received the Congressional Medal if you didn’t (Stolen Valor Act of 2013). Have some pride in America and protect our flag!
You can't spin this to your liking because it just ain't gonna fly.
DeleteThe controversy of "social contract" is philosophical. However, that being said, as for the rest of your comment, I suggest you read my FIVE PART response to another reader above - beginning with PART ONE on May 31st at 6:42 P.M. and ending with PART FIVE at 6:59 P.M.
As for your personal attack on me - or anybody else - I DO "have some pride in America and protect our flag." In fact, I have a great amount of pride in America and I protect our flag in many ways, as described in my column. If you read my commentary, the two paragraphs before the end clearly indicate my pride and my patriotism...and what America and our flag mean to me. But I reiterate that I do NOT condone what the NFL players have done by "taking a knee"...but I support their right to do it.
GBD