Below is my column in The Hill Newspaper. Even after Nike embraced Colin Kaepernick, I was flabbergasted by the decision of Nike to pull sneakers showing the early American flag because Kaepernick found it offensive. Supporters of Kaepernick has insisted that the flag is now a symbol of white supremacists. I do not know about the adoption by white supremacists but I am familiar with the flag being used by prior protesters ranging from Civil Rights marchers to anti-Vietnam activists as well as displayed at events like President Barack Obama’s inauguration. Today, the Anti-Defamation League added its voice in saying that “We view it as essentially an innocuous historical flag. It’s not a thing in the white supremacist movement.”
Nevertheless, Nike has clearly decided that it will write off those citizens who feel strongly about the flag as a national symbol and play to Kaepernick’s base. The company’s sales went up seven percent after its controversial decision to hire Kaepernick for its campaign in 2018. Yet, the move has also hurt its brand with a sizable number of Americans and the latest move will likely weigh heavily on many not to buy Nike products. Many of us are not inclined to buy Nike products in light of its extreme position on the flag.
Here is the column:
When it comes to free speech, Nike seems to have new slogan of “Just Don’t Do It.” This month, stores around the country received new Nike sneakers for the July 4th holiday, featuring an image of the Betsy Ross flag. Former National Football League quarterback Colin Kaepernick saw the 18th century flag image and was deeply offended. That was all that it took for Nike to order stores to return the shoes and not to sell them.
No one is suggesting that we are at risk of moving from rounding up sneakers to rounding up speakers. Nike is a private company entitled to curtail its own speech, while the First Amendment bars any government censorship. However, the incident captured perfectly the new view of free speech taking hold on campuses and across the country. It is not enough to protest the flag or the national anthem. It is necessary to prevent others from wearing or seeing the flag you deem offensive. Nike rounded up the sneakers, stating that it decided not to release the sneakers because they feature “the old version of the American flag.” Nike seemed to suggest it was evident that an American flag on a sneaker was obviously offensive.
For full disclosure, I did not agree with Kaepernick on his anthem protests and previously addressed the claim that professional football players and other employees have a right to engage in political protests of this kind. There are indeed legitimate and unresolved issues concerning race in our country, but the flag is as much a symbol of our aspirations as it is of our history. It embodies the very values that Kaepernick claims are denied to African American citizens, such as due process, equal justice, and equal protection. It also symbolizes our core democratic belief in free speech.
Many across the country celebrated the decision by Nike to destroy the sneakers and noted that the flag has been used by white nationalists. However, the flag also was used by civil rights marchers and Vietnam War protesters. It clearly means different things to different people. However, in this case, the only view deemed valid was that of Kaepernick and his supporters. Nike surprised many last year when it embraced Kaepernick as a spokesman and highlighted his controversial protests, despite the opposition of a majority of football fans, who had a legitimate gripe in this move that tied products to a political movement rejected by many consumers. Nike now has gone even further, refusing to allow its own customers to purchase shoes that Kaepernick views as offensive.
The trend is all too familiar to those of us who have watched free speech on campuses erode under expanding speech codes and rules. This trend began with changes advocated as protections for minority students in the creation of “free speech zones” that confined any expression of political or social viewpoints, as well as “safety zones” to protect students from ideas or images deemed offensive. It evolved into preventing others from espousing offensive ideas or images, from regulating Halloween costumes to rules against the undefined category of microaggressions, or speech that is not expressly racist, sexist, or offensive yet is viewed that way by another student. Finally, faculty members and students began blocking speakers from campuses to prevent others from hearing opposing views.
It is also a familiar trend in Europe, where free speech is being rapidly curtailed in countries like France, England, and Germany as people are routinely prosecuted for speech deemed offensive or inciting. Preachers have been arrested for publicly calling homosexuality to be a sin, while protesters have been arrested for supporting the boycott of Israel. Once you start regulating speech, the taste for censorship becomes insatiable.
Kaepernick is the embodiment of this twisted view of free speech. When Nike featured him in its “Just Do It” 30th anniversary campaign, it added the slogan, “Believe in something. Even if it means sacrificing everything.” One can certainly disagree with a company associating its products with a controversial political movement. Nike insisted it was not taking sides but celebrating the right to protest. Now, it seems to be following another mantra, “Believe in something. Even if it means silencing everyone else.”
That distinction between speaking and silencing has long been lost on campuses. A few years ago, University of California at Santa Barbara professor Mireille Miller Young led her students in attacking a pro-life display on campus and assaulted two young women behind it. Despite pleading guilty to criminal assault, she was defended by professors and students who called such displays “triggering” and akin to “terrorism.” She not only was not fired but has been celebrated as a hero, including being honored as a speaker at the University of Oregon as a symbol of “the radical potential of black feminism in the work that we do on campus and in our everyday lives.” Other faculty and students have led attacks on speakers on various campuses around the country without punishment.
I recently had a debate with a key supporter of criminal speech codes, who insisted that preventing others from speaking out is an act of free speech. He insisted that professors and students who block or heckle speakers into silence are exercising speech. This concept of silencing speakers as free speech is catching on around the country. All you have to do is call out speech by someone else to be triggering or offensive.
Over a dozen college presidents and members of the Higher Education Council of San Antonio recently concluded that there is no free speech protection for any words that spread, provoke, or create “animosity and hostility.” When conservatives were invited to come speak on campus at the University of California at Berkeley, more than 200 faculty members signed a letter calling for classes to be canceled and declaring that “there are forms of speech that are not protected under the First Amendment.”
Politicians and pundits have followed suit. Former Democratic presidential candidate and Vermont governor Howard Dean declared that hate speech is not actually protected under the First Amendment, while CNN anchor Christiane Amanpour asked former FBI director James Comey why he did not arrest Donald Trump during the 2016 campaign for hateful speech.
The lesson clearly has taken hold with students. Student editors like those at Wellesley College have declared that “hostility is warranted” against conservative speakers and that “shutting down rhetoric that undermines the existence and rights of others is not a violation of free speech” but is itself free speech. Polls show almost half of college students now believe hate speech is not protected under the Constitution, and one in three students believe violence is warranted to stop speech deemed hateful.
The “Just Don’t Do It” attitude will resonate with some who believe free speech means silencing others. Kaepernick has finally completed this inevitable cycle. He insisted that he was being punished for speaking in protest. Now, he seeks to prevent others from wearing the flag. It is akin to not only demanding to be able to kneel at football games but to prevent others from standing. Of course, there remain other ways of speaking. When it comes to Nike products, maybe try the slogan “Just Don’t Buy It.”
Jonathan Turley is the Shapiro Public of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.