by Nomad
The Colin Kaepernick controversy has highlighted America's divide over paying respect to symbols and the right to dissent, as a form of free speech.
In this post, we look at the historical reasons why our views changed following the rise of fascism and perhaps why they are presently called into question again.
"False Rogues, Boring from Within"
Back in March 1944, The California Law Review published an interesting article called "Conscience v. The State" by Chester Charlton McCown.
Despatches from Switzerland a few months ago told of the execution of some and the arrest of many more of these sectaries. They were accused of teaching children to pray for peace and for the return of their fathers and brothers from the battle front; of putting Germans in the dilemma of choosing between the Fuehrer and a heavenly leader; of interpreting their visions as warnings of impending doom upon the German people.These "false rogues, boring from within," who were chiefly working people, exhibited admirable courage and tenacity of faith. When, recently, seven were executed, their wives begged them not to sign a recantation in order to obtain a possible pardon. Repression seems to have had no deterrent effect upon the spread of the movement.
McCown, as a Professor of New Testament Literature, inevitably saw parallels between this act of defiance in the face of a fascist state and the early Christian martyrs who refused to pay their not only their taxes but their absolute submission to Caesar.
That ethic has remained a long part of the faith. The writer cited the formal protestant attitude to nationalistic symbolism:
They believe that they "must obey God rather than man." If a national majority should decide upon policies which they thought wrong and they should be ordered to take part in the resulting actions, many would refuse to comply, accepting without resistance whatever punishment resulted.
This is, incidentally, the basis for Kim Davis' and her position on religious liberty.
Generally speaking, religious convictions (and, in more secularist form, the moral conscience of the citizen) have found safe haven in any nation that dares to call itself free.
In his analysis, McCown contrasted the Nazi policy (and the adopted policies of Nazi-occupied nations) against those of the United States.
Through a series of high court's rulings, the Supreme Court had established unambiguous protections against the encroachment on the conscience of the individual by totalitarian or majority-rule principles.These liberties were now formally guaranteed by the Constitution.
McCown pointed out that these decisions illustrated the progress the American democracy had achieved.
In a series of landmark cases, the high court affirmed that the right of a minority to express and urge opinions which are distasteful, or even abhorrent, to the majority of the population.
The Story of the High Court's Ideological Reversal
Actually, the court had tussled back and forth with the matter when it came to the paying homage to patriotic symbols, like saluting the flag,
In Minersville School District v. Gobitis, the Supreme Court in 1940 had ruled that public schools could compel students—in this case, Jehovah's Witnesses—to salute the American Flag and recite the Pledge of Allegiance. The student and his family had objected on religious grounds.
Justice Felix Frankfurter, in his majority opinion, rejected the idea that the freedom to follow religious/conscience under the First Amendment was unlimited.
The court decided that the rights of the students to refuse to salute the flag was less important than national unity. In the minds of the justices, allowing children to forgo saluting the flag or reciting the Pledge of Allegiance, (even in the name of their religious convictions), would weaken the effect of the collective patriotic exercise.
And that was a threat to national unity and national security.
The mere possession of moral or religious convictions does not relieve the citizen from the discharge of political responsibilities.”
One of those responsibilities, the court decided, was paying due respect to national symbols. Patriotism for the sake of national cohesion, even when forced upon children, required legal protection.
However, only three years later, in the case of West Virginia State Board of Education v. Barnette, the court by a 6-3 opinion reversed the earlier decision.
Aside from the religious aspect, the state did not have the power to compel speech in that manner for anyone. That included saluting the American flag and say the Pledge of Allegiance.
Free speech and constitutional rights, wrote Justice Robert Jackson, in general terms had to be placed "beyond the reach of majorities and officials."
Otherwise the definition of free speech, in the face of "compulsory unification of opinion," had no meaning at all.
The Court stated:
"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."
In merely three years, the court had interpreted the Constitution in two radically different ways. What could account for it?
One possible reason for this change of heart could that the views on majority-minority rights had undergone some radical changed. The rise of fascist states in Europe (and in the Pacific) had demonstrated that the majority opinion in support of totalitarian ideas could have a lethal effect on free speech.
Without protections of the minority view, the overzealous majority could silence all opposition, especially when backed by a cooperative press and a ruthless leader. As the history of the time showed, such thinking opened the doors to fascist principles.
Aftermath
Justice Roberts would later, as it turned out, take on in a new role in the aftermath of World War II. President Truman appointed him to serve as U.S. chief of counsel for the prosecution of Nazi war criminals.
One of the most interesting topics that came out of those legal proceedings was the culpability of the individual in the face of political pressure. The mass of Germans blindly followed Hitler off the cliff, destroying not only their homeland but also most of Europe, but were they guilty of a crime?
The high command who stood on trial in 1946 pled they were merely following the orders without the capability of refusal. Were they too as guilty as the officers who took a more active part?
In an attempt render justice in the name of human conscience, the question had to be asked and answered: when do we, as individuals, have a duty to resist.
As outlined in the words of one of the chief prosecutors in the Nuremberg trials, the fascist ideology could be summed up thus:
The individual has no value in himself and is important only as an element of the race. This affirmation is logical if one admits that not only physical and psychological characteristics, but also opinions and tendencies are bound, not to the individual but to the nation. Anyone whose opinions differ from the official doctrine is asocial or unhealthy.
Strictly speaking, this idea is common to all fascist states. Indeed, it is one of the defining characteristics of fascism: the absolute submission of the individual and the individual conscience.
The Man Who Refused to Salute
The 1936 photo above was taken during a ceremony at the launch of a Nazi military vessel. The Fuehrer himself was in attendance and the crowd was more than eager to show their full support of his policies.
One man stands amid the enthusiastic throng with his arms folded while all around him hundred of patriotic Germans hold up their arms in salute and allegiance to the Nazi Party and its leader.
The man, historians tell us, was named August Landmesser. The photo is evidence of one man's courage to remain defiant as a single voice of sanity in a crowd that had lost its conscience.
August Landmesser's story begins unremarkably enough. Like a lot of young and ambitious Germans, Landmesser joined the Nazi Party in 1931 not out of a passionate or patriotic impulse. His superficial political affiliation was based on a more self-serving motive.
As it turned out, it was love that awakened his conscience. In 1934, Landmesser met and fell in love with Irma Eckler. The timing could hardly have been worse. In September of 1935, the Nazi government initiated the Nuremberg Laws which prohibited the mixing of the races. The laws excluded German Jews from Reich citizenship and prohibited them from marrying or having sexual relations with persons of "German or related blood." (At least 400 mixed-race children were forcibly sterilized in the Rhineland by 1938.)
Under those laws, Landmesser was expelled from the party and his marriage application was rejected.
Nevertheless, the couple remained together and had a daughter, Ingrid in October 1935. As an expelled member of the Nazi Party who was illegally living with a Jew, the Landmessers' situation became more and more precarious. In 1937, a year after the historic photo was taken, the family made the fateful decision to escape Germany and flee to Denmark. Unfortunately, their escape was thwarted at the border. August was arrested and charged with “dishonoring the race."
In his defense, Landmesser argued that neither he nor his wife were aware of her Jewish ancestry. It was perhaps the only defense available since the laws allowed no right to appeal.Lawbreakers could expect the severest form of punishment, outside of outright execution.
He was acquitted on 27 May 1938 for lack of evidence, with the warning that a repeat offense would result in a multi-year prison sentence.
Clearly, the couple had fallen under the ever-watchful eyes of the authorities. Only a month later, Landmesser would be arrested and this time, the court would not be as forgiving. He was sentenced to two years of hard labor in a concentration camp.
The conclusion of the story is not a happy one. The state used all of its power to crush the Landmesser family. His wife was detained by the Gestapo and incarcerated in Fuhlsbüttel prison. It was here that she gave birth to her second daughter, Irene.
Released in 1941, August Landmesser never saw his beloved wife nor his children again. What actually became of this lone dissenter is not precisely clear. He is believed to have died in Croatia where it is around six months before Germany would officially surrender. His body was never recovered.
As far as his wife, it is believed that she was taken to the so-called Bernburg Euthanasia Centre in February 1942, where she was among the 14,000 killed. She never saw her children nor her husband again.
The couple- indeed the entire family- paid a heavy price for defying the state. However, in the end, the Nazis, the government-supported propaganda machine, the bankers and the majority of Germans who saluted and followed Hitler were wrong. Landmesser, that man who refused to salute, refused to follow the crowd in opposition to this conscience, was right.
The Kaepernick Controversy
Lately, in the US, there has been much ado involving an NFL football player who has made the decision not to stand during the ceremonial playing of the national anthem.
As an African-American, Colin Kaepernick has made his feelings known:
"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."
In another interview, he has said:
I have family, I have friends that have gone and fought for this country. They fight for freedom. They fight for the people, they fight for liberty and justice for everyone. And that’s not happening. People are dying in vain because this country isn’t holding their end of the bargain up, as far as giving freedom and justice, liberty to everybody. It’s something that’s not happening. I’ve seen videos. I’ve seen circumstances where men and women that have been in the military have come back and been treated unjustly by the country they fought for and have been murdered by the country they fought for, on our land. That’s not right.
Whether you agree with Kaepernick's view or not, one cannot fault him for a lack of courage. His opinion, of course, is not a view that has endeared Kaepernick with American nationalists who find that dissenting view both un-American and un-patriotic.
There's been a lot of pressure from conservative groups to get Kaepernick fired from professional football. And the majority of his critics -even writer who called the football player "a fucking idiot"- claim to be First Amendment absolutists.
It was reported this week that a pastor in Alabama actually endorsed violence against anybody who refused to stand for the national anthem. Pastor Allen Joyner of Sweet Home Baptist Church before a football game in McKenzie, Alabama, said:
“If you don’t want to stand for the National Anthem, you can line up over there by the fence and let our military personnel take a few shots AT you since they’re taking shots FOR you.”
So much for the long-held protestant ethic of God's gift of moral conscience.
Bad Apples, Angry Police and "Ill-Advised Statements"
Not long after the Kaepernick controversy began, the police in San Francisco- home-turf for his team- jumped into the fray. The head of the San Francisco Police Officers Association (SFPOA) fired off a letter to the NFL commissioner Roger Goodell and 49ers boss Jed York. Signed by SFPOA president Martin Halloran, the letter called Kaepernick's remarks "ill-advised statements."
Union President Martin Halloran has challenged virtually every perceived criticism of the San Francisco Police Department since the shooting, firing off vitriolic letters filled with sharp retorts and biting putdowns. These have been reprinted in the San Francisco Police Officers Association’s newsletter, alongside salvos against other perceived enemies of the union.
Another police union, this in Santa Clara, implied that its 70 officers might refuse to work at the stadium if Kaepernick continues his protest.This threat puts the officers in direct conflict with the city’s contract with the police union. Even the Santa Clara Police Department Chief, Michael Sellers, disagreed with the union's position. He told reporters that he respected Kaepernick's right to voice an opinion and encourages his officers "to protect those constitutional rights for every citizen, even if they disagree."
It's telling that the head of the police should have to remind the officers of the basic principles of free speech.
In fact, the reaction of police unions is highly ironic in a way. In an effort to silence criticism of police brutality, the police unions have decided to use intimidation tactics, exactly the kind of thing that would validate the original protest.
The claim that any abuse of power by the police was simply the acts of "bad apples" no longer tenable. The police unions, whether they realize it or not, have exposed themselves as giving sanction to the brutality that sparked Kaepernick's protest.
The Hypocrisy of the Right Wing Media
On extremely outspoken critic of the athlete was a conservative political commentator Tomi Lahren. Her attacks on Kaepernick have become extraordinarily personal. She has called him "a whiny, indulgent, attention-seeking crybaby."
This is what passes for insightful journalism in America.
Her own critics point out that Lehren, at 22 years old, has based her entire career on attention-seeking. Her boss, Glenn Beck, is an attention addict, by anybody's definition. And his crying jags on TV have made him a meme favorite.
Nevertheless, without the benefit of such introspection, Lahren "blitzed" Kaepernick with an argument that would have pleased any white supremacists organization.
“When will those in black communities take a step back and take some responsi-damn-bility for the problems in black communities. Because it seems to me, blaming white people for all your problems might make you the racist.”
If there is racial inequality in the US, says Lahren, the real source of the problem. is the black man's lack of initiative and drive. How unfair it is, she moans, that the African-American should lay the blame on white people.
Quit your complaining, Negro man.
Obviously, Lahren doesn't feel Kaepernick's complaints are warranted and yet, according to records, police killed at least 102 unarmed black people in 2015, nearly twice each week.
Only 10 of the 102 cases in 2015 where an unarmed black person was killed by police resulted in officer(s) being charged with a crime, and only 2 of these deaths (Matthew Ajibade and Eric Harris) resulted in convictions of officers involved. Only 1 of 2 officers convicted for their involvement in Matthew Ajibade's death received jail time. He was sentenced to 1 year in jail and allowed to serve this time exclusively on weekends. Deputy Bates, who killed Eric Harris, will be sentenced May 31.
Aren't statistics like that worth calling some attention to?
Moreover, Lahren has accused Kaepernick of hypocrisy for living a "privileged life", citing his $12 million a year salary, all for "throwing a ball around."
In fact, Kaepernick donated $60,000 in backpacks to New York students for the upcoming school year. He has also announced plans to donate the first $1 million he earns this year to charities that help communities in need to further support the causes he believes in. More recently, he has said that he would donate all proceeds he receives from jersey sales to charity.
In fact, Kaepernick donated $60,000 in backpacks to New York students for the upcoming school year. He has also announced plans to donate the first $1 million he earns this year to charities that help communities in need to further support the causes he believes in. More recently, he has said that he would donate all proceeds he receives from jersey sales to charity.
That particular attack by Lahren is ironic since we may presume she herself probably earns a comfortable salary at TheBlaze for doing little more than, tweeting, sitting before cameras and reading rants.
Kaepernick a Trouble-maker, Clive Bundy a Hero
In her diatribes, Lahren has relied on a standard- practically automatic- nationalist response.
“If this country disgusts you so much, leave.”
That harkens back to the right wing bumper sticker of the Nixon era, "Love it or Leave it." It was usually directed at the Vietnam war protesters or long-haired hippie freaks.
However, the same response was certainly not applied by the right wing media to the Bundy standoff, in which led to an armed confrontation between protesters and law enforcement in southeastern Nevada in 2014.
Unlike Kaepernick's refusal to stand, Cliven Bundy's defiance went well beyond words or civil disobedience. He had a large gang who actually threatened to use armed force to back their demands.
Here's how FBI special agent Joel P. Willis described the confrontation (courtesy of ThinkProgress):
“The 200 followers … included a significant number brandishing or raising their assault rifles in front of the officers,” Willis wrote, describing a scene where men with guns “aimed directly” at his colleagues. “Some of the gunmen took tactically superior positions on high ground , while others moved in and out of the crowd, making their movements behind other unarmed followers.”
And yet, nobody on Fox News told Bundy he ought to go shopping for a new place to call home. In fact, conservative media figures, including Fox News, spent weeks lionizing and comparing Bundy to civil rights heroes. At one point, Cliven Bundy was touted as a champion of freedom akin to Rosa Parks and Martin Luther King Jr.
The Cliven activists were heroes up until the time their leader said in a national TV interview that blacks were "better off as slaves." Slavery, he said, helped the “Negro” people feel free by learning “how to pick cotton” and stop going to jail, collecting welfare and having abortions.
That was the end of Cliven Bundy's heroic status. Even the right wing media refused to applaud those remarks. (Even a writer for TheBlaze sheepishly admitted that he too had jumped on a bandwagon prematurely.)
* * *
The dismissal by Lahren was echoed by the GOP nominee, Donald Trump, who weighed in on the issue at the end of last month.
As usual Trump contorted the facts to fit his purposes, and called Kaepernick "openly racist." That undoubtedly went over well with his KKK supporters.
“I think it’s personally not a good thing, I think it’s a terrible thing. And, you know, maybe he should find a country that works better for him. Let him try, it won’t happen.”
In fact, as the Constitution and the Supreme Court decisions amply demonstrate, Kaepernick has already found the right country. The First Amendment of the US constitution doesn't protect merely the opinions that everybody approves of. It doesn't vouchsafe just for the opinions everybody smiles at, salutes to, and applauds for.
As the author George Orwell said:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
Oftentimes, the thing people do not want to hear is the thing they most need to hear, to think about, to confront with courage and to work toward changing. Had there been more Landmessers in the 1930s, catastrophe for Germany might have been avoided.
The freedom of the press and the guarantee of free speech form bulwarks against a totalitarian takeover. Far greater than gun ownership.
Anybody who wishes to destroy or undermine those protections- no matter how much they say they approve of them- must be seen as an enemy of the Constitution. Without the right of the individual to dissent, there is no measurable difference between the US and your average fascist state, like North Korea or Saudi Arabia or Iran.
The dissenter, the man who stands in the cheering crowd with his arms crossed, refusing to salute the flag or sing to the anthem, is therefore what America is all about. At least, in principle.
So, it is the people like Trump and Lahren who should find a new place to live. An alternative home for the pair might be Russia (or any of half a dozen other countries) where the individual is prohibited from giving voice to his conscience and unable to defy -in any way- the majority opinion and the whims of an officious state.