Colin Kaepernick and First Amendment Rights

Colin Kaepernick may have anticipated some sort of backlash for his decision to sit in protest during the national anthem last week, but even he probably didn’t foresee the national firestorm that it would set off. The myriad of opinion pieces from journalists and talking heads alike went from debate to contentious name-calling very quick. Kaepernick says he will continue to sit – or kneel – until there is meaningful change; but in the meantime, he has pledged to donate $1 million to charitable organizations who help people affected by racial inequality.

People perceived it as anti-military, unpatriotic and an affront to the American flag. However, it was exactly the opposite of all those things. Voicing one’s opinion, and not fearing backlash or censorship from the government for speaking one’s mind, is one of the great inalienable rights afforded to everyone under the Constitution. Freedom of speech, and the right to protest which coincides, has come before the Supreme Court many times.

right to protest in the supreme court

Perhaps the most hotly contested – in the court of public opinion rather than the Supreme Court – to come before the high bench was Snyder v. Phelps(2011). Phelps and his deplorable cult known as Westboro Baptist Church picketed Snyder’s son’s funeral. His son, who was gay, was a Marine who was killed in action in Iraq. Westboro showed up at his funeral with signs that said things like, “thank God for dead soldiers.” Snyder sued Westboro on the grounds of defamation, invasion of privacy and intentional infliction of emotional distress. However, in an 8-1 majority decision, the Court ruled that Snyder was a matter of public concern, e.g., homosexuals in the military. Justice Samuel Alito, in the lone dissenting opinion, argued that a funeral and the family’s grief were a private matter, and therefore First Amendment rights weren’t applicable.

Then there is perhaps the most famous right-to-protest case of them all, Texas v. Johnson(1989). Johnson burned an American flag in protest of the Reagan administration’s policies. He was originally sentenced to one year in jail and received a $2,000 fine. When the case reached the Supreme Court, they upheld the overturning of that conviction in a 5-4 decision. The majority ruled that even though many took offense to his actions, that does not justify the silencing of speech, which they found to be political in nature.

Your rights as a protester have been challenged before, and while there are limitations, it has remained an inalienable right. The limitations include: conduct. Does your protest purposefully incite violence? Also, is your protest creating a disruption, such as blocking traffic? Are you violating any noise ordinances, or staging your protest on private property? Then you may be subject to limitations. Remember, the First Amendment protects citizens from the government, not so much citizens from other citizens. But so long as you aren’t violating any of these provisions, you have a right to say what you want to say, without worry of censorship. People are going to disagree with you, but if your protest is of a peaceful nature such as Kaepernick’s, then you cannot be criminally charged for your beliefs.

B. Clausen

A graduate of the University of Kansas, Brian Clausen is the U.S. news reporter for Dopplr. Before joining the team, he created digital content for large companies.


  • 1st amendment rights apply to government vis-a-vis the individual/citizen. Kaepernick protested in the work place. 1st amendment rights are not protected in the workplace. Kurt Schilling’s 1st amendment rights were not protected in the work place.ESPN did not like what he posted and fired him. The 49ers (and the NFL) are sympathetic to the BLM terrorist movement and will not punish their third string quarterback.

    • Terrorist movement? Give me a break. American soldiers are terrorists too if you want to use that term so loosely.

    • This was mainly written to address those saying he “shouldn’t be allowed” to stage a protest during the National Anthem which, agree or disagree, he is allowed. That’s where the 1st Amendment focus came from.

  • He is allowed only because his employers allow him. Many people feel he shouldn’t be allowed, and it is well within the NFL’s and 49ers organization’s rights to disallow such behavior. That is where the First Amendment does come in–they are the protected parties, and they have the right to dictate how they wish to ‘express themselves’ by requiring certain behavior from their employees. At this point it seems they don’t object to having the games used as a political platform for the players. If customers make clear they have a problem with this, that attitude may change…

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