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Legal Learning: To kneel or not to kneel – That is the question

Last year, Colin Kaepernick , the former San Francisco 49ers quarterback, started kneeling during the national anthem. It was his way of protesting racial inequality and police brutality in America. Hundreds of NFL players have kneeled during the anthem in the past two seasons.

Kaepernick was accused by some of disrespecting the flag and showing contempt for the national anthem. The president tweeted: "Get that son of a bitch off the field right now — You're fired!"

Vice President Michael Pence walked out of an Indianapolis Colts game when several San Francisco 49ers kneeled during the national anthem.

I'm reminded of what critics said about other protesters in the past. At the 1968 Olympics in Mexico City, track stars John Carlos and Tommie Smith raised their black-gloved fists in a Black Power salute to protest the injustices black people faced back home. Brent Musburger, a sportswriter at the time, called them "black-skinned storm troopers."

Muhammad Ali spoke against the war in Vietnam, and was called a traitor, a coward, an unpatriotic dupe.

As Michael Eric Dyson wrote last month in the New York Times: "These men, united by a sports world that is fueled in many ways by black excellence, are patriots, true lovers of democracy, who want to see substantive social change."

Many athletes have spoken out against the president's comments.

NBA star LeBron James said that the president is woefully out of touch with the country he leads.

Washington Wizards player Bradley Beal called the president a "clown," and Washington Redskins cornerback Josh Norman said the president "is not welcome in Washington, D.C."

San Antonio Spurs coach Gregg Popovich called the President's tweets "disgusting" and "comical."

Robert Kraft, owner of the New England Patriots (who gave $1 million for the president's inaugural), said he was not only "deeply disappointed" by the president's remarks, but added that his players were "thoughtful" and "intelligent," and he supported "their right to peacefully affect social change and raise awareness in a manner they feel is most impactful."

Bruce Maxwell, a catcher for the Oakland A's, tweeted: "The point of my kneeling is not to disrespect our military, it's not to disrespect our Constitution, it's not to disrespect this country ... I'm kneeling for the people that don't have a voice. And this goes beyond the black community, and this goes beyond the Hispanic community, because right now we're having an indifference and a racial divide in all types of people ... I'm kneeling for a cause, but I'm in no way or form disrespecting my country or my flag."

In Houston, a 17-year-old senior named India Landry remained seated in protest during the Pledge of Allegiance. Last month, she was expelled from school by the principal, who told her that "this isn't the NFL" and that "sitting was disrespectful and should not be allowed." After a storm of protest, the girl was allowed back in school.

Someone must have told the principal about West Virginia vs. Barnette, a 1943 decision by the U.S. Supreme Court that ruled the Constitution protects students from being forced to salute the American flag.

Justice Robert Jackson wrote in that case 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 Supreme Court went even further in 1989 in Texas vs. Johnson, holding that the government can't prosecute a person for burning a U.S. flag, because to do so would be inconsistent with the First Amendment.

There is no law that says we have to stand during "The Star-Spangled Banner." There is a law called the First Amendment that says we have to give people the right to protest injustice.

In fact, there is nothing more American than protesting injustice.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer.

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