When I was in middle school (and living in India), the Indian government banned Salman Rushdie's book, Satanic Verses. I was 12 years old at the time, and though I read about the ban I didn't understand what it meant till years later. When I finally read Rushdie at 17, Midnight’s Children, Shame and Imaginary Homelands promptly blew my mind (I was disappointed by some of his later books, that’s a story for another day).
In the mid-90s, I put together some of the earliest web pages about Rushdie. The internet rewarded me with multiple death threats. Some were comical, but they weren’t a laughing matter. Several people associated with Rushdie, including translators and publishers had been attacked, one was killed. Thirty-seven people in Turkey died in a fire set by a mob upset they were discussing Rushdie’s book. Rushdie himself was in hiding at the time.
Those death threats made me think, seriously, about freedom of speech and what it meant. In places where the law allowed books to be banned if their publication risked creating “unrest”, I saw political opportunists creating this unrest to have the books banned. By criminalizing offensive speech, the law had implicitly legitimized being offended by speech.
The modern interpretation of the First Amendment was a long fought battle. For well over a century, US courts had upheld restrictive laws like the alien and Sedition Act, and the Espionage Act. It’s difficult to imagine a federal court today upholding the prosecution of Eugene Debs for protesting a war. And yet, it did happen.
When I had the opportunity to become a US citizen, one of the tipping points was my understanding of these distinctions. There were other factors including family, work and convenience (it’s much easier to travel on a US passport). Freedom of speech was the sole political factor.
Last year, the Indian Supreme Court issued a ruling that requires movie-theaters to play the national anthem and audience members to stand. Within weeks, the police were arresting people who failed to stand for the anthem. I wasn’t surprised by this. It reaffirmed the decision I’d made, but I also know that attitudes towards compulsory displays of patriotism can change.
In 1940, the US Supreme Court ruled that public schools could compel students to stand for the anthem and salute the flag. Three years later, the court reversed itself. Both cases involved families who were Jehovah’s Witnesses. The 1943 ruling, West Virginia Board of Ed v Barnette, set in motion our current era, with a very minimal role for government in regulating speech. In 1985, in the Indian state of Kerala, two siblings who were Jehovah’s Witnesses had refused to stand for the Indian national anthem. The school expelled them, they went all the way to the Indian Supreme Court and won the case the following year. Yet, thirty years later, the same court demanded the anthem be played at movie theaters, and that all attendees stand for it. Worse, it had encouraged vigilantes to attack those who refused to stand. Jehovah’s Witnesses are going to court again.
So when Colin Kaepernick sat out the anthem last year, my first thought was genuine pride for my adopted country. Here was someone who decided one day that he wasn’t going to stand for the anthem because of the racism and police brutality he saw expressed in our laws and institutions.
And I imagine he said to himself: Nobody. Can. Make. Me.
Free speech is a natural right, it’s inherent, you have it simply by virtue of being a person. The bill of rights implicitly recognizes this because it only prohibits the government from infringing it. It doesn’t confer this right. No government can confer it, they can only infringe. That is a radical stance, because in many other systems, rights aren’t assumed to exist unless the state grants them. Ours is different. In our country, the people have rights and permit the government to regulate them in certain respects. In some ways, the tenth amendment is the most important because it reserves all other rights for the people.
Of course, we’ve often failed to live up to those ideals. But not the day Colin Kaepernick decided to take a knee. When he failed to stand for the anthem, he chose to live up to our best ideals.
If the American Revolution means anything, and our system stands for anything, it’s this. A person can say what they want. And. Nobody. Can. Stop. Him.
We’re now in 2017, and that sense of pride is being sorely tested. We have a president encouraging powerful people to retaliate against people for kneeling during the anthem. His exhortations are welcomed by many of our citizens eager to see free men and women punished for exercising their right to protest. Every NFL team has turned their face away from Kaepernick and he remains unemployed.
Kaepernick chose to kneel after a discussion with fellow NFL player and veteran Nate Boyer. They agreed on this gesture as a mark of respect for those who have served the country. The flag covering the casket at a military funeral is presented to next of kin on a bent knee. Many of our fellow citizens choose not to see the deep respect implied by this manner of protest.
There is nothing objectionable in the cause Kaepernick knelt for. Justice is also a natural right, accorded to all. That a fellow citizen is forced to ask us to recognize injustice by kneeling is in fact an indictment of our institutions.
We also have a president who is using the powers and prestige of his office to actively suppress dissenting opinions and trying to wrap himself in the flag. This is as serious a threat to free speech as I can imagine.