Skip to main content
editorial

When Colin Kaepernick refused to stand during the pre-game ritual of the playing of the American national anthem, as a protest against "a country that oppresses black people and people of colour," the betting was that all heck, and then some, was about to come down on the San Francisco 49ers quarterback. National symbols like the anthem are a big deal in most countries, and that goes doubly for America.

So far, however, neither the National Football League nor his team's ownership have come down on him like a ton of bricks. On the contrary, they've shown patience, wisdom and a careful reading of the national mood. It turns out that while many Americans are outraged by Mr. Kaepernick's actions, many others are sympathetic. (And many couldn't care less, because they watch football for the football, not the pre-game ceremonies.)

The 49ers organization issued a statement supporting both the playing of The Star-Spangled Banner and Mr. Kaepernick's refusal to stand for it. It called the anthem "an opportunity to honour our country and reflect on the great liberties we are afforded as citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem."

This is sensible. But it is hardly legally required. If the league or his team had wanted to, they could have disciplined him. They didn't, and they shouldn't – but their decision to tolerate and even to some extent back him, rather than dropping him, has been a business decision, not a legal or constitutional one.

Americans, like Canadians, enjoy something approaching an absolute right to free speech. But that right, the most fundamental of citizen's rights in Western democracies, is about being able to speak without the government censoring you. It's not the right to say anything you want, anywhere and any time, without consequences.

In the sports world, people are disciplined or even fired for expressing constitutionally protected speech, all the time. An athlete says something unsportsmanlike – like American soccer goalie Hope Solo calling Team Sweden "cowards" – or a sportscaster says something perceived as racist or sexist, and the next day he or she is canned.

You have the constitutionally protected right to speak your thoughts, even including offensive words, without fearing government censorship. But nobody has to give you a venue. An employer is not engaging in government censorship when they try to stop their employees from acting, on the job, in ways that will offend customers or otherwise bring the company into disrepute. Free speech is not the right to say whatever you want and still pick up a paycheque.

Consider the case of the Egyptian judoka Islam El Shehaby. At the Rio Olympics, he refused to shake the hand of his Israeli opponent, Or Sasson. The International Olympic Committee reprimanded him, and he was sent packing. The IOC's position seems to have been that, at home and on your own time, you may get to act on your hateful political beliefs – but not on our stage you can't.

Or remember Brigette dePape? In 2011, she was a Parliamentary page, working in the Senate. During that year's Throne Speech, she held up a sign reading "Stop Harper!" She was fired. Jack Layton, then the leader of the New Democrats, called her actions unacceptable, since the job of parliamentary staff is to be non-partisan, not "holding up signs in the middle of debates and solemn moments."

"We encourage protests," said Mr. Layton. "But it should be happening at the proper place and at the proper time."

When Parliament fired Ms. DePape, it wasn't questioning her free speech rights. These remained 100 per cent intact, and she's spent the years since protesting, speaking and being an activist for her causes. The problem wasn't with what she was saying, it was when and where. Your waiter at The Keg does not have a constitutionally protected right to talk his diners' ears off about the benefits of voting Conservative, or slip copies of the Liberal platform into the menu. And in the case of a parliamentary page, it is even worse than that, since making a political statement in the Senate is the antithesis of the necessarily apolitical job that Ms. DePape signed up for.

There's a long tradition of what is known as civil disobedience, which involves breaking a rule or law in the service of a higher principle, while at the same time accepting the punishment for breaking the rules. It's why Martin Luther King's followers would allow themselves to be arrested for sitting down at a legally segregated lunch counter. They accepted the punishment of the law, to make a point about their support for the rule of law but their opposition to a great injustice within the law.

Admittedly, neither Ms. DePape's nor Mr. Kaepernick's protest is quite on the level of Rosa Parks' refusal to move to the back of the bus. In Mr. Kaepernick's case, he has yet to pay a price, and may never pay any price. Instead of being punished for his beliefs, he gained popularity. He acted on what he apparently feels is a matter of principle, and it hasn't cost him, at least not yet.

Part of this is luck – the NFL has so far shown a level of reasonableness that has benefited players and fans alike. But it also has to do with time and place. He's quietly sitting or taking a knee during a pre-game ceremony. If his protest were instead taking place on the field, during the game, it would be a different story.

But if Mr. Kaepernick sparks emulators and counterprotesters, things could get interesting. What if some player decides that, as his personal statement in favour of Making American Great Again, he is going to spend the national anthem period miming out the act of laying bricks for Donald Trump's Great Anti-Mexican Wall? Stay tuned. On any given Sunday, anything can happen.

Interact with The Globe