Posts Tagged ‘The Flag’

Forced to Salute

May 28, 2018

(This is a paper I wrote for Civil Litigation class at CCBC two years ago.  I was thinking if I wanted to do something on this blog that touched on Memorial day and then the NFL changed its rules, forcing players to stand during the national anthem.  Since detractors of the protest that Kaepernick started think that it is about the US military then this seems like the perfect time to talk about what was fought for.  Also, for the record, many of my relatives fought in various wars.)

Picture this situation. You have dressed up in your favorite sports team’s colors and paid for your ticket. You are looking forward to seeing your team blow away the competition while chomping down on your favorite snack and drinking a cool drink. The announcer says “Please rise, take off your hats and join us in singing our national anthem.”1 You look around as everyone gets to their feet and their hands go over their hearts as the first stanza of The Star-Spangled Banner is sung by a talented musician. Fireworks go off as everything stops for a few long moments and there is a feeling of unity and common purpose in the air. This is most likely familiar to a lot of our readers but this time, something is different. You look to your left and you see some man with his hat still on and his hands in his pockets. Why is he not saluting? Does he hate America?

When it comes to sporting events, saluting the flag is inextricably linked to the national anthem. The history of playing the United States’ national anthem and its accompanying salute at sporting events goes back to the 1800s but it was not until the 20th century that it became a tradition. In 1916, President Woodrow Wilson ordered that the Star-Spangled Banner be played at military and other appropriate occasions. In 1918, the anthem was played at that year’s World Series baseball games. During World War II, the practice of playing the national anthem before baseball games became a tradition that eventually extended to all other sports played in the United States. However, at no point have we decided to actually compel people to salute the flag. I believe that compelling people to salute the United States flag at sporting events (or anywhere else) is an abuse of power.

The First Amendment freedom of speech is the first item in a Bill of Rights given to the citizens of the United States of America. It is a cornerstone of the way we act in our society and has become a cultural and legal touchstone that is invoked constantly in popular culture. Specifically, the First Amendment states that no law can be created that abridges freedom of speech. Traditionally, freedom of speech is extended also to the right of freedom of expression since speech is not limited to verbal statements. The messages we send by what we do are as protected as the words we say. In fact, this is also recognized as a universal right by the Universal Declaration of Human Rights which was created by the United Nations General Assembly. Freedom of expression is not only an American right, it is also a human right. Therefore, Americans have a right to salute the flag but they have just as much right to not salute the flag. This freedom has been upheld over and over despite situations where public opinion has been against the content of somebody’s speech.

There are also plenty of court cases that uphold the freedom from having to engage in patriotic rituals. In 1974 , the United States Supreme Court was asked to settle a conflict between the Communist Party of Indiana and the Election Board of Indiana. Communist Party candidates had been rejected from ballots because those candidates had failed to recite loyalty oaths required of them. The Election Board had required an oath stating that the candidate would not advocate the violent or forceful overthrow of any government. Historically, this was an issue because several Communist regimes had begun with violent revolution. The Supreme Court ruled that requiring candidates to recite or sign a loyalty oath before they could be validated as candidates was unconstitutional. Once again, the First Amendment provided the protection the Communist Party needed in order to avoid being compelled to recite an unfair loyalty pledge. Whether the Communist Party agreed with the content of the pledge or not, it was overreach to

In 2013, the Supreme Court once again stepped in to protect the rights of citizens with a different point of view. They were asked to settle a dispute between the Agency for International Development and the Alliance for Open Society International. In order to get funding, clinics were being required to adopt a policy opposing prostitution. The problem was, prostitutes were often patients of these clinics and the clinics believed that such a policy would unfairly send these women away. They tried to challenge the requirements so that they could receive funding without conditions. Once again, the court harkened to the First Amendment and stated that the US Constitution’s right to free speech protects citizens from the government telling them what to say. By trying to put words in the mouths of those running clinics, they were trying to limit their right to free speech and expression. They had a right to make the required policy but they also had a right to not make the required policy. In effect, they decided that nobody can force a private organization to publicly profess a viewpoint that mirrors the government’s viewpoint but is not held by the organization itself. If the government cannot force a private organization to profess a viewpoint they do not agree with then it follows that they should not be able to force a private citizen to do the same.

In 1943, at the height of patriotic fervor for our country, the Supreme Court addressed a dispute between the students and the West Virginia Board of Education. The issue between them involved saluting the flag during the pledge of allegiance. The pledge of allegiance, like the national anthem, is a ritual that shows everybody around that you have faith and loyalty in your country. The problem arose when schoolchildren objected to saluting the flag during the pledge of allegiance in class. They objected on a religious basis because they felt that saluting the flag was the same as worshiping an image in violation of a statute which required them to salute the flag. They had a legitimate, thoughtful objection to saluting the flag and they pleaded for relief from the statute. The court ruled that the First Amendment applied again, this time by way of the Fourteenth Amendment. More importantly, the court showed that you cannot force somebody to express something that they do not believe in. The children held beliefs that had nothing to do with hating the country they lived in and just did not want to participate in the act of saluting the flag.

Let us take a moment to get at the timeliness of this matter. The reason that this has become an issue is that Colin Kaepernick, famous football player, decided to kneel instead of saluting the flag during the playing of the National Anthem. The stated reason was that he was protesting systemic racism in the United States. In 1969, the Supreme Court was faced with the dispute between students who were protesting the Vietnam War and the school officials who objected to their behavior. The kids were wearing black armbands as a form of silent protest against the United States involvement in the War in Vietnam. School officials decided to suspend anybody wearing a black armband. The Supreme Court relied, as it has in all of the cases above, on the First Amendment in deciding for the young protestors. Part of their decision in favor of the protest being free speech was the interpretation that the behavior was not purposely or actually disruptive. The behavior itself was not actually disruptive so it more closely resembled pure speech and it was easier to allow it under our laws and ideals. Nobody immediately rioted when Kaepernick performed his protest and the anthem continued and was followed by the scheduled game as planned. It merely sparked the discussion it was meant to as stated by Mr. Kaepernik.

Let us move past the law and examine some basic political and ideological concepts that the reader may be familiar with. The national anthem, the pledge of allegiance and saluting the flag are all widely accepted marks of patriotism. Patriotism is defined as the love one has for their country that engenders loyalty. This is the feeling that makes saluting the flag during the national anthem easy for most people because they love their country and want to express that love and their loyalty. Nationalism is an extension of patriotism as it is a feeling of loyalty and pride for your country and that it is better than any other country. This is still a positive feeling and it often motivates people to not only show their pride in their country but also to convince other people to show their pride as well. Finally, we have fascism which is a loaded word. Fascism is nationalism taken to its extreme where anybody who does not display nationalist pride and loyalty toward the country is ostracized or punished. This is a step too far as it veers into the realm of policing thought. When most people think of Fascism, they think of the standard historical examples. Mussolini’s Italy began when the Fascist Party slowly took over the government starting in the 1920s. The government encouraged and then forced Italians to give up their individuality because of undying loyalty. In Hitler’s Germany, another fascist regime, everybody was required to salute as individuality was stripped away from society. Compelling people to show pride in their country is a slippery slope that dissuades people from criticism which is healthy.

In conclusion, we see that our whole society is built on the idea that we are free to express ourselves even if we are expressing ourselves by inaction. Our Founding Fathers felt this was important when they wrote the First Amendment to the United States Constitution. In a nation built on the philosophy of freedom, one of the freedoms they thought important enough to name first was the freedom of expression. While the Constitution is a living document and our interpretation of it changes over time, this one ideal has remained constant. The Supreme Court has reaffirmed this right over and over again in several different decades. Many ideas changed and evolved but that freedom remained constant. Not only that, but we see from fascist thought that forcing people to salute or otherwise show their loyalty or pride of country can be seen as the first step toward losing our individuality. Forcing people to participate in an act of expression that they do not believe in is an abuse of power under our system of laws. It should not be allowed to happen.

List of Sources:

1. USCS Const. Amend. 1 (LexisNexis 2016).


3. Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974).

4. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321 (2013).

5. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

6. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).



9. Turner, Henry Ashby, Reappraisals of Fascism. New Viewpoints, 1975. p. 162.

10. Benito Mussolini, Giovanni Gentile, Doctrine of Fascism (1932)

11. Kershaw, Ian (2001). The “Hitler Myth”: Image and Reality in the Third Reich. Oxford University Press. p. 60

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