Let's talk about speech, baby

Let me begin by saying I think the NFL is sending a bad message by creating a rule that requires players to stand for the playing of the national anthem before games; or remain in the locker room while the anthem is playing.  It is jingoistic and not reflective of the freedoms upon which our nation was founded.

But it is not a violation of the First Amendment rights of the players who want to take a knee.  The First Amendment only protects our right to freedom of expression from being infringed by the government.  It is clearly outlined in the text of that First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting 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."

While Donald Trump, in his role as the nation's president has certainly pressured the NFL's owners to take action to stop the kneeling, no law or executive order was enacted.

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However, the right is not absolute.  We all know the exception where someone cannot shout "FIRE" in a crowded theater.  What caught my eye and is illustrative of another instance where the right can be infringed was an op-ed piece in the Baltimore Sun.  The USA Today story that mentioned this op-ed piece pointed out that the authors are graduates of the Naval Academy and they were taking issue with Trump delivering the commencement address at the 2018 graduation ceremony.  Here is an excerpt from that op-ed:

"It is right and fitting that the president of the United States give a commencement address to a service academy's graduating class.  It is also right and fitting that citizens of the democracy for which these graduates will soon be charged with protecting point out the personal cowardice, narcissism and incompetency of the current president."

Because Daniel Barkhuff and William Burke, Annapolis Class of 2001 are no longer commissioned officers, they can write those words without fear of retribution.  That would not be the case were they still serving as commissioned officers.

Were they still serving as commissioned officers, their words might well be in violation of a law passed by Congress that does infringe upon freedom of speech.  A law that has been determined to be constitutional.  That law is the Uniform Code of Military Justice.  Specifically, Article 88.

“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

Dr. Daniel Barkhuff is a former Navy SEAL who served multiple combat tours.  Defending our freedoms.  At least one of those freedoms which he did not enjoy while serving our nation.

Freedom of speech is important.  Important enough that the collective ignorance of what the First Amendment actually means needs to be addressed.  

Most of us have forgotten Adam M. Smith.  If you have, this will remind you:

As far as all levels of government were concerned, Mr. Smith was free to deliver this drive-thru rant.  No laws were ever passed that infringed on his right to speak.  

That doesn't mean there weren't consequences.  This happened in 2012.  Mr. Smith was fired by his firm shortly after the video rant he posted to Facebook went viral.  He was the firm's Chief Financial Officer at a salary he claimed was $200,000 a year.  He also claims to have lost stock options worth over $1 million.

With some limits, as mentioned above, we are free to say almost anything.  But not without consequence.  Freedom of speech isn't protection from consequence being imposed by anyone outside the government.