New England Patriot players during the National Anthem at Gillette Stadium, September 24, 2017. (Photo: Greg M. Cooper/USA TODAY Sports/via Reuters)

Standing for the National Anthem is meaningless if it’s mandated, and such a mandate undermines the essential liberty of free speech.

Let me begin with a simple declaration. I believe that the United States is a better country when not only the government protects the right of free speech but also the culture values that right. I believe that free speech is the essential liberty — the liberty that helps preserve all others — because without the ability to call out unconstitutional actions you cannot possibly maintain a free nation. Because I believe those things, I believe Americans should be tolerant of dissent, even when they believe dissenters are offensive and wrong, and that the best cure for bad speech isn’t censorship but rather better speech.


In other words, if I believe a person is wrong, I seek to persuade them to change course — not mandate that they conform their speech or behavior to my demands.

These words are not radical. They’re not new. Indeed, they’ve been better stated by better men in harder times. I think back to January 1942 — arguably the lowest point for American arms in the history of the nation. Much of the striking power of the Pacific fleet was sunk or disabled. The Bataan campaign was underway, and it would ultimately result in arguably America’s worst military defeat. Nazi Germany dominated Europe, Japan was on the offensive across Southeast Asia, and civilization itself hung in the balance.

You think we live in troubling times now? Those were troubling times.


It’s against that backdrop that the West Virginia Board of Education passed a resolution requiring that a salute to the flag become a “regular part of the program of activities in the public schools.” It made sense. The nation was rallying for war. We were in the grips of a total mobilization unlike any conflict in the nation’s history. At the height of the war, a staggering 37.5 percent of the nation’s Gross National Product would be dedicated to defense. A much smaller population than America has today would ultimately put 16 million men under arms. Patriotism was essential. America would unite, or America might die.


A small group of Jehovah’s Witnesses, however, declined to salute. Though they were patriots, their conscience wouldn’t allow them to demonstrate the required reverence for the flag. They risked punishment and persecution for their stance, and appealed to the federal courts for aid. In 1943, with the Second World War still very much in doubt, the Supreme Court rendered its verdict — with words that have echoed through the generations:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.


Those are the most famous words of West Virginia v. Barnette, one of the Supreme Court’s greatest cases, but these words apply today:

Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.


In other words, the power of the salute lies with the choice to salute, and the most repugnant form of censorship is compelled speech — the effort to force a person to state what they do not believe. Mandatory reverence isn’t reverence at all.

The Supreme Court’s words have a profound cultural meaning that resonates far beyond the letter of the law. The government cannot force a man to violate his conscience. Nor should it try to bully powerful, private entities into doing what the state cannot legally accomplish. Private corporations should think twice before using their own economic and cultural power to enforce conformity, even if they are legally empowered to censor their employees. Again, the cure for bad speech is better speech, and free speech cannot flourish in the midst of a culture of censorship.

Sadly, it is now clear that the freedom from compelled speech is under profound threat, from both the Left and the Right. Earlier this month I was honored to write an amicus brief on behalf of 33 family-policy organizations in a case called Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Supreme Court will decide whether petty officials (state civil-rights bureaucrats) can compel a baker to use his artistic talents to celebrate an event he finds offensive. The court will determine whether the state can compel speech.

This week, a high official, the president of the United States, has repeatedly called for the punishment of American citizens for exercising the very right guaranteed by Barnette — the right to refuse to salute the flag. Or, more precisely, the right to modify their salute to the flag.


Oddly enough, many members of the Right endorse this move — including those who would be livid if a Democratic president called on the NFL to fire praying football players because that’s “injecting religion into football.” Many of these same people are solidly behind Masterpiece Cakeshop in its battle against forced speech. Virtually all of these folks are outraged when private corporations and private universities enforce rules on speech that systematically disadvantage and silence conservatives. But then Trump acts in the same manner and the response is . . . Yay?

“Fight fire with fire,” I’m told. You mean censor in the name of freedom? “Give them a taste of their own medicine,” they say. You mean act like a hypocrite? “You just don’t have the guts to fight the culture war,” some tell me. But angry tweets and public temper tantrums hardly represent the “courage” our nation needs.

Here’s the bottom line. If you’re participating in or justifying conduct you’d despise if the partisan roles were reversed, if you’re changing your views because “the people” have spoken and rejected an “elitist” embrace of individual liberty, or if you are not confident enough in your own views to embrace and defend a marketplace of ideas, then we’re just not on the same side. I’m not your culture warrior, and though we may have great respect for each other and agree on many things, on this issue I’m your opponent. I want you to lose. I want the president to stop demanding that private corporations punish speech he doesn’t like. If football players — or any American — stand for the flag and the anthem, I want them to do so because of their love for this nation, its people, and its ideals, not because they fear the consequences of dissent.

In the words of the Supreme Court, do not make an “unflattering estimate of the appeal of our institutions to free minds.” Seek to impose your will, and more men will kneel (if they’re permitted), and when they rise, it will be with resentment in their hearts. Embrace liberty, and more men will rise, and they’ll do so with joy. I want those players to stand. I want to see their hands over their hearts. But I want to see that happen out of love, not fear, and so long as the fear remains, a decision to stand means nothing but an empty victory in a culture war that will tear this nation apart.


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