Tuesday, September 13, 2016

Free Speech and Free Markets Go Together

I think, by now, most people have heard about Colin Kaepernick's protest, which he manifested by his refusal to stand for the national anthem before the 49ers' August 26 preseason game against the Green Bay Packers.  Kaepernick explained his actions as follows: 

I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.

Many were offended by his decision; others have applauded it.  What is it that makes people (particularly white people) so upset about someone choosing not to stand for the national anthem? I thought the anthem and flag were supposed to stand for freedom, which includes the freedom to dissent and disagree. It fascinates me that one football player could get this much press for deciding not to do something he was under no obligation to do (as his employer made clear). But it certainly explains why he did it. If nothing else, Colin Kaepernick reminded of us both of our ability to speak freely and that there are potential costs when doing so. He got people to talk about an important issue, and he used his platform to focus on a necessary conversation.

Free speech can, though, have consequences. And in many ways, it should. The Bill of Rights just protects our right to speech and limits the government's ability to impose consequences for exercising that right. The Denver Broncos' Brandon Marshall lost a credit union sponsorship for his actions in support of Kaepernick's protest. Personally, if I did business with that sponsor, they'd lose my money because I support his Marshall's right to protest and because I think the the protest, conducted in a peaceful way, raised issues worthy of discussion.  (I will note that the sponsor cut ties in what appears to be a respectful and above-board way. I just disagree with the decision).  That's the free market working in a (mostly) free country.  I don't have any problem with the sponsor acting as they did, either.  They, too, were exercising their rights (assuming they did not breach a contract, and I have seen no evidence they did). I am not mad the credit union made the decision it did; I just disagree with the decision, and I would let them know that by walking away. 

Most striking to me about this uproar is the apparently binary way so many people view protests. One can love this country and hate injustice. We can protest as we try to reach our ideals. And we can disagree about the method of protest or the ideals themselves. But let's consider the point and be respectful of one another as we try to work through our differences. Brandon Marshall stated this position especially well. He explained, "I'm not against the military. I’m not against the police or America. I’m just against social injustice.”

Businesses, like people, have the right to associate with those they choose, and consumers (in turn) have a right to respond.  That is not just free speech, it is how a free market operates. 

Th United States, to me, is a great, yet greatly flawed, nation. The flag (and our national anthem) can represent the best of this nation and its people. The song and flag, like almost anything related to this nation that is more than 200 years old, also has ties to some of our very worst history, including slavery. That is also a reality. We have real and significant remaining institution problems related to race and gender, even if we're better than we used to be.  

No matter what, the national anthem and the flag are neither bigger than, nor more important than, the citizens they are intended to represent. Speaking freely, even when it is not popular, is honoring the best of what the flag should represent, the best of this nation’s history, and (I sincerely hope) a sign of a great future. Free speech is not a liberal or conservative issue, and exercising our right to speak should be celebrated, whether you agree with the speech or not.  Free speech begets free markets. 

“All we say to America is, ‘Be true to what you said on paper.’ If I lived in China or even Russia, or any totalitarian country, maybe I . . . could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right.”
— Martin Luther King, Jr., Civil Rights Leader

 

“We are so concerned to flatter the majority that we lose sight of how very often it is necessary, in order to preserve freedom for the minority, let alone for the individual, to face that majority down.”
— William F. Buckley Jr., founder of National Review magazine

 

“We cannot have a society half slave and half free; nor can we have thought half slave and half free. If we create an atmosphere in which [people] fear to think independently, inquire fearlessly, express themselves freely, we will in the end create the kind of society in which [people] no longer care to think independently or to inquire fearlessly.”
— Henry Steele Commager, U.S. historian

 

https://lawprofessors.typepad.com/business_law/2016/09/i-think-by-now-most-people-have-heard-about-colin-kaepernick-protest-manifested-by-hissrefusalto-stand-for-the-national-ant.html

Corporations, Current Affairs, Human Rights, Joshua P. Fershee, Law and Economics, Sports | Permalink

Comments

I agree in great part. I have responded to the discussions regarding Kaepernick’s (and Marshall’s) choice that I may not believe they have chosen the most effective means of expression (and have hurt their personal brands rather than build upon them), but I would certainly fight for their right to engage in this expression.

My concern, the past several years, has been universities adopting policies that repress speech and expression – “safe zones,” “trigger warnings,” “micro-aggressions” and “speech policies” (including the creation of pronoun guides) – in the very institutions where speech and expression should be even less burdened than open society. A university should be an environment where there is a free flow of ideas and thought. In addition, I am absolutely aghast at universities – which have appeared in the past few months and weeks – creating dormitory living that promotes self-segregation. We are perpetuating the perception (or reality) of Generation Z being “snowflakes” (unable to tolerate any heat).

“Speaking freely, even when it is not popular, is honoring the best of what the flag should represent, the best of this nation’s history, and (I sincerely hope) a sign of a great future. Free speech is not a liberal or conservative issue, and exercising our right to speak should be celebrated, whether you agree with the speech or not. Free speech begets free markets.” This should be reflected in the environment and dialogue on university campuses.

Posted by: Tom N. | Sep 14, 2016 6:38:35 AM

Thanks for the comment, Tom. There are a lot of challenges in trying to facilitate a good learning environment, which requires free speech and a diversity of ideas. My institution, like others, has many challenges, but I'm happy to teach at an institution where the president has expressly condemned trigger warnings and safe space demands: "A University’s role is not to make students feel comfortable. It is to make them think." - WVU President E. Gordon Gee, "President E. Gordon Gee praises research accomplishments at State of the University"

Posted by: Joshua Fershee | Sep 14, 2016 8:41:32 AM

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