Patriotism, the Flag and First Amendment

At this rate, are we going to need a separate game scorecard merely to keep track of who is kneeling and who’s not during the national anthem?

Patriotism is not “ my country right or wrong”. Nor a blind loyalty to a political party or a president or members of Congress. Patriotism is loyalty to the US Constitution and all that its stands for.

Over the last few weeks major and diverse events took place in America from the “kneeling protests” of NFL mostly Black players, and President Trump reaction to such peaceful protests, to the violent confrontations in Charlottesville and the airing of Ken Burns epic documentary the “Vietnam War” all three major events raised issues of patriotisms, loyalty to the flag and free speech.

Hate Speech and the First Amendment

Perhaps there is a need here to state that “hate speech”, no matter how repulsive or offensive it is, is “protected speech” under the First Amendment. The Supreme Court affirmed this time and time again, leaving no doubt that there is no exception to free speech under the First Amendment.

In Matal v. Tam, the Supreme Court unanimously affirmed the “no hate speech exception” to the First Amendment. Justice Samuel Alito writing for four justices “the idea that the government may restrict speech expressing ideas that offend—strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or other similar grounds is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate”.

To add emphasis to the “no exception rule” Justice Anthony Kennedy wrote separately for the four justices” A law that discriminates based on viewpoint is an ‘egregious form of content discrimination” which is “presumably unconstitutional’. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the determinant of all- The First Amendment does not entrust that power to the government benevolence- Instead our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

However, we need to keep in mind that free speech is not an ‘equal opportunity”, thus some groups have more access to free speech than others no different than the pursuit of happiness where some have more chances to succeed than others. “The right to free speech does not rest on the presumption of a level playing field”.

In a recent article in The New York Review of Books titled “Why We Must Still Defend Free Speech” David Cole argues “but to treat speech targeting African American differently from speech targeting anyone else cannot be squared with the first principles of free speech”.

It is clear that all the authorities whether scholars or justices agree that “hate speech” is protected speech, that hate speech targeting certain groups whether Blacks, Jews, or Muslims is protected speech and that the government is not an arbiter of “speech content”. Principals that allowed “minorities” such as Italians, or Irish, or Jews, certainly Blacks use the freedoms enunciated in the First Amendment such as free speech, free assembly, the right to redress the government enabled these groups to pursue what they deemed as redress of certain injustice they have faced or are facing. Those rights are protected rights for Alt-Rights, KKK, Zionists, Palestinians, and Muslims certainly to Blacks.

The only time instruments of government will interfere in the rights of free speech under the First Amendment is to regulate and manage the “assembly/demonstration” making sure it does not interfere with public safety, inconvenience for citizens such as holding loud demonstration in the middle of the night, but never about “content”. Concluding the Alt-Right and Neo-Nazis and the KKK have the absolute right to assemble, protests and march in Charlottesville. However, that right under the First Amendment ended when violence is used and when it created a present and clear danger to public safety.

The African-American experience of hundreds of years of pursuing rights and freedoms must be seen within this context which bring us to the second point “Kneeling” while the National Anthem and Flag are played and displayed.

Kneeling is nor disloyalty, nor is burning the flag

Colin Kaepernick, began kneeling in pre-game event of the national anthem causing him to lose his job as quarterback for the 49ers, justifying his kneeling and stating “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” Well I doubt if anyone can doubt or even argue that Blacks in America have been suffering from consistent and persistent social and organized discrimination.

Much has been said about the peaceful protest by the mostly African-American NFL players who decided to follow the foot step of Colin Kaepernick to kneel as an act of protest while the national anthem is being played and while the flag is raised. Many called it unpatriotic, un-American, other calling them “sons of bitches” and should be fired. Families of Gold Stars called them unpatriotic and ungrateful, who are making lots of money while others died for their country.

No doubt more than any other group in America, the African-American have been subjected to the most humiliating and injurious history of any and all groups in the United States. A history with grievances going back some 600 years since the first Africans where brought to America as slaves. Slavery is the most degrading experience any human can suffer causing irreparable harm to the psych of the African-Americans or anyone else enslaved.

Keeping in mind it was only in 1968 with the passing of series of Civil Rights legislations that America began to officially address centuries of wrongs. That struggle continues everyday with many states placing many obstacles to full citizenship of the African-American. These injurious actions take the form of restrictions on voting rights, paying higher interest rates and premiums because most African-Americans live in certain Zip codes, certainly color barriers are real in private sector jobs.

Unfair and unjust treatment of African-Americans by police through racial profiling and the targeted incarcerations of African-Americans for the slightest of offense, an injurious devastating program introduced by President Clinton and his wife Hilary Clinton saw great jump in the number of young African-Americans being held behind bars and the devastations it has on the already fragile African-American families.

The action by the mostly Black players is a protected speech under the rules of the First Amendment and is not injurious to any one, does not create a “present and clear danger” and is way far from burning the flag is deemed protected speech.

Such peaceful action falls far short of what the Supreme Court rules as protected free speech when in Texas v. Johnson, the Supreme Court ruled in favor of Johnson “invalidating prohibition on desecrating the American flag enforced by 48 of the 50 states.”

The Black players did not “desecrate” the flag by burning it, they simply refused to stand while the national anthem is played – it is civil and civilized act of protest protected by the US Constitution and guaranteed by the First Amendment. In the same way that some feel this act as rightfully protected under the First Amendment, so is the right of others to be angry and upset with these Black players for behavior deemed offensives and undesirable. The actions and views of both sides are protected rights, and both are part of patriot Americans.

Patriotism and the Vietnam War

So many of this generation were lost after they came home, but we thank them for their honesty

Over the last week, I have consistently made it a point to follow the PBS series “Vietnam War” a chronicle of war by the exceptionally talented Ken Burns The series takes us back to the end of WWII when we thought the world conflicts were solved, only to discover it planted the seeds of future conflicts in Korea, in Vietnam, certainly in Palestine among other regions.

One thing is consistent in the series, is the lies and deceits by sitting presidents mainly the late President John Kennedy and the Lyndon Johnson and continued with Richard Nixon, all of whom made it standard policy to lie and deceive the America public, taking it deeper and deeper in the quagmire of Vietnam.

President Kennedy contrary to his declared statements in his inaugural speech and his committed his administration to liberation and end of colonialism. He did not live to his commitment first by invading Cuba then he began to get the country deeper and deeper in active engaging in Vietnam with the more than 13,000 advisors hiding and lying about their involvement in combat operations from the American people.

John Kennedy, later Lyndon Johnson had the “dream team” the “best and brightest” exceptional talents such as Dean Rusk at State, Robert McNamara at Defense, McGeorge Bundy at National Security and General Maxwell Taylor as special military advisor. All without exception were veterans of WWII and Korea and all are experienced and seasoned professionals with high degree of intellect. Yet they all fell victims to arrogance and deceptions they were winning the war or that they can win the war.

With the sudden and unexpected death of President Kennedy, Lyndon Johnson with the support of the “best and brightest” continue to pursue his war knowing he and his team could not win it and are not fit to manage it, a war that took a life of its own. The Cold War was all about proxy wars, with the US and the Soviet Union engaged in wars through clients that devastated and ruined so many countries.

Military commanders not used to guerrilla warfare began to demand more and more troops to solve a chronic problems plaguing the South Vietnamese government well known for its corruptions and despotism. Some key military commanders counseled aids to Vietnamese villages and counseling against massive retaliation and arguing wrongful killings of one Vietnamese will generate 10 recruits to fight the Americans.

Unfortunately, Lyndon Johnson administration lied its way to full and active war by pushing through the Gulf of Tonkin Resolution Which Congress approved based on “cooked” intelligence findings. Which in the end resulted in the deployment of more than 500,000 Americans? The same happened when George Bush lied his way to the War on Iraq that destroyed the country and ignited a wave of terrorism not seen before.

Some 3 million tons of bombs were dropped over Vietnam. Total villages where burned and destroyed using Napalm that burned humans to death and burned the bamboo huts of Vietnamese villages. Agent Orange destroyed large track of agricultural land depriving not only North Vietnams soldiers of sanctuary and food but destroying the lively hoods of millions of South Vietnamese villagers.

Only when journalists the likes of Morley Safer, Halberstram, Neil Sheehan began to report the war on daily basis did the American public began to realize what is going on. That the war was all about lies at the highest level of governments from the president on down.

Finally, what unravels the war was the patriotism and loyalty of not only journalists but returned Veterans who testified before Congressional committees and certainly Daniel Ellsberg and Neil Sheehan who made available secrete government documents that became known as the “Pentagon Papers” which showed and exposed the lies and the mess of the war. More important it was the Supreme Court that finally put the nail in the coffin when ruling against Nixon administration when it decided to block the release of the Pentagon Paper.

The Vietnam War was the poor man war, both White and Black, and the war became unpopular when the lives of the children of the powerful and elite became at risk. Patriotism was all over, the courage and sacrifice of hundreds of thousands of soldiers, sailors and airmen who were on the front line and the more than 58,000 who gave their lives for a wrongful war, are the heroes and patriot and so where the hundreds of thousands injured and maimed for life who were totally ignored and never given the full recognition they should have gotten for their sacrifice and lifetime of suffering. Patriots and heroes are the journalists who exposed the war as a big lie and a fraud.

Heroes and patriots were the returned Veterans who took up the fight against the war. All of these are the true patriot, those on the side of the war and those on the other side. Ultimately the true patriots are members of the Supreme Court who upheld the rights of citizenship to free speech and assembly and who insisted there is no exception to free speech even it is repugnant and hateful; and that allowed the publications of the Pentagon Papers to go forward. This is what makes America a special country.

Let us keep the freedoms of the First Amendment alive. Let us celebrate patriotism by not going along with our government when it lies and when its policies are wrong, and by challenging the government and its leadership when it is wrong. Patriotism is when you fight for your country’s constitution and its principals of freedoms and liberties, not only for us but for others as well.

Patriotism is when you stand up and challenge your government when it engages in wars based on lies and wars of special lobbies and interest groups. Patriotism is when you stand or kneel for the flag. This is what makes America such a special place. If we did not have these guaranteed rights, myself and perhaps tens of millions would be exiled to jail or deported.



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