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Judge's View: Free speech easy to support if it never offends

I have been taking my kids to University of Minnesota Duluth hockey games since they were toddlers. One of the first things they had to learn when they went with me to a game was the proper way to observe the national anthem.

If you wear a hat into my courtroom, security personnel will tell you to remove it. If I see a flag displayed incorrectly, I will be that guy who points it out to whoever is in charge. Maybe that is the Eagle Scout in me, or the Naval officer, or just how I was raised, but showing respect for the flag has always been a part of who I am.

Unless you have been living in a cave the past few weeks, it is fairly obvious that a lot of people are deeply offended by any perceived disrespect for the flag. The recent actions of some professional athletes in kneeling for the national anthem as a form of protest have angered many people and drawn support from many others.

Which probably makes it a successful protest.

It is not the form of protest I personally would likely ever choose, but it is both peaceful and disruptive. It is provocative, yet does not incite violence. The athletes' goals are to draw attention to larger issues of social justice and to encourage discussion of those issues. Clearly, they are succeeding on the former; only time will tell if that leads to the latter.

The First Amendment of the U.S. Constitution prohibits any law restricting freedom of speech. Although that right is not absolute, there is very little question that any attempt to criminalize actions such as kneeling for the national anthem would be unconstitutional.

The Constitution, however, does not necessarily shield these players from potential adverse action by their private-sector corporate employers. The players' individual contracts, collective bargaining agreement, and team rules might all come into play on that front. The players no doubt know all of that, but have made a conscious decision to risk those consequences in using their status as celebrities to address an issue that is important to them. That is the essence of free speech.

I know some of my friends disagree with me on this, and they are very angry at these athletes. But free speech would be easy to support if it never offended anyone. It is a Constitutional right precisely because it is not easy or popular. Court cases have handed "victories" to far more outrageous people than professional athletes in the context of First Amendment litigation.

Nazis could march through Skokie, Illinois. Ku Klux Klan leaders' convictions for hate speech at a rally were overturned. Individual citizens can burn an American flag in protest. Those cases do not mean that judges share those beliefs. The idea is that even offensive and hateful ideas can be expressed without fear of prosecution, but, hopefully, logic and reason in a public forum ultimately show the error of those beliefs.

It is far too soon to know whether the current protests will lead to any tangible changes. In the meantime, I will continue to stand for the national anthem. But those who kneel are well within their rights to do so.

Judge Harris is a judge in the Sixth Judicial District, working out of the St. Louis County Courthouse in Duluth. He was born in Two Harbors. He and his wife Barbara now live in Hermantown with their four children.

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