In 1940, the U.S. Supreme Court, in Minersville School District v. Gobitis, upheld a Pennsylvania law requiring public school students to stand and recite the Pledge of Allegiance. Two years later, the West Virginia Board of Education adopted a resolution implementing that requirement in our public schools. Students who failed to do so were deemed insubordinate and subject to punishment.

The rule was challenged on behalf of a student who was a Jehovah’s Witness. Their faith followed a literal version of Exodus Chapter 20, verses 4 and 5, which commanded them not to make graven images or bow down and serve them. The Witnesses interpreted the flag as one of those images.

The case ended up back before the U.S. Supreme Court in West Virginia State Board of Education v. Barnett. The high court sided with the student.  Justice Robert Jackson, writing for the majority, said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

The Barnett decision established a critical benchmark for the freedom of thought and expression in this country that still holds true today, and is worthy of mention given the current controversy involving President Trump and the NFL.

This brouhaha is not exactly like the Barnett case because the NFL players are private employees and therefore, their speech—in this case the anthem protests—is not protected by the First Amendment.  And the government has not passed a law that compels the players to stand for the anthem.

However, the President of the United States has encouraged NFL owners to fire kneeling players. “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. He’s fired,’” Trump said at a campaign rally Friday night in Georgia.

Trump’s message has resonated with Americans who are angry about the protests and see them as disrespectful to our country and the flag by a bunch of overpaid athletes.  NFL fans, veterans, police and first responders who object to the protests can respond by staying away from games, ignoring the sport or staging their own protests.

Dissent has always been integral to the American experience, and when a President of the United States calls for peaceful demonstrators to lose their jobs it can have a chilling effect. The government cannot order patriotism anymore than it can command what religion citizens should follow.

America is chocked full of patriots all of stripes, people who love this country, cherish its values and are willing to make the ultimate sacrifice to maintain our freedom.  Patriots can also see the imperfections and strive to make us a more perfect union.




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