I like David Burkhead's writing, a lot, but I disagree with this post! Updated with David's reply,, and mine
Football, Protests, and Rights
"In the past, I have pointed out that there is no right to protest per se. I.e. there is nothing that is normally not permitted which suddenly becomes permissible if done as “protest”. There are rights which you have which can be used as protest–speech, peaceable assembly (don’t forget the “peaceable” part), the press, and petitioning government for redress of grievance–but “protest” on its own is not an enumerated right.
Still “speech”, which also includes physical actions for the purpose of conveying a message, is one of the rights. And so, in the wake of the NFL ruling on the “kneeling” protests during the National Anthem, people are complaining about violating the player’s “free speech.'"
This is a train wreck of the idea of inalienable natural rights and individual actions. I must clarify, there are no Constitutional rights. Yes, even I use the term Constitutional Rights, but it's wrong. The rights discussed in the Bill of Rights is simply a brief recitation of a few of the pre-existing inalienable natural rights which accrue to we humans. These rights in American legal parlance were first described in the Declaration of Independence. The Bill of Rights is not exhaustive; it barely scratches the surface.
Further, the Constitution cannot give individuals rights, that is not how the Constitution works. We misunderstand the Constitution and what the founding fathers accomplished. The Constitution was created by the freemen of the various states coming together, giving up a limited and specified set of rights so that a government could be created and allowed to use those rights to assist the people in the creation of civil society. The only rights given up by we the people were the rights which are enumerated to the Executive branch, the Legislative branch, and the Judicial branch. Yes, it is possible that Amendments or even other parts of the Constitution could establish that a tiny few additional rights were also given up. But if the right does not exist in the Constitutional language, it was not given up by the people.
So, is protest a right. Yes. But here is where it gets tricky, and I think where David goes astray. First, enforcement of "Constitutional Rights," meaning the Bill of Rights does not apply to individuals. It is individuals who are protected from preemptive government action by the "Constitutional Right." The Constitution both creates and empowers government, and limits the power and scope of government. The Bill of Rights only limits the rights of government and those acting on behalf of the government. So, for example, I retain my right to free speech, and government and governmental actors cannot proscribe or limit my speech (yes, the Supremes have ruled that is not absolute as to time, manner and place, as well and I am not opening the exceptions can of worms for this discussion).
But, other individuals also retain their rights to free speech. David's example, "If I were to engage in political protests on company time that cost my boss business and therefore money, I’d be fired ..." is apropos. Both David and his employer retain their rights, both have the right to speech, which includes substantial amounts of action. The government, however, is limited in that it cannot censor David's speech before his speaking. Nothing limits David's employer from exercising his right to speech by firing David.
This point is often misunderstood, and many people assert that the employer cannot fire David because he has a Constitutional Right to free speech. Unless his employer is a government actor, this is false. That does not mean that there is not another law or regulation which could limit the employer's action, there could be.
Protest is an inalienable human right, it has not been given up in the Constitutional language so it remains with the individual and cannot be alienated (I would go into a discussion of what is and what is not an inalienable right but - - it would take a book. The nickel tour is that these rights are any right which is inherent to the human by his having a soul and being made in the image of God). Protest is simply an aspect of free speech of which the freedom of the press is an aspect as well. So, the Constitution only describes a single aspect of free speech - freedom of the press, and not all speech rights. This does not mean that the people do not have these other inalienable natural human rights, we do, they remain. They are inalienable which means no one can separate them from the individual.
One final point here, David's definition of protest, "'In the past, I have pointed out that there is no right to protest per se. I.e. there is nothing that is normally not permitted which suddenly becomes permissible if done as “protest..." is a non-sequitur. Why is the phrase "... normally not permitted..." necessary? Protest does not require actions which are not normally permitted. It only requires a gesture or statement of dissent or disapproval. In the NFL Player case, the kneeling is nonverbal speech which is a gesture of dissent or disapproval. It is late, and I suspect I am just tired and fussy about this point.
"Still “speech”, which also includes physical actions for the purpose of conveying a message, is one of the rights. And so, in the wake of the NFL ruling on the “kneeling” protests during the National Anthem, people are complaining about violating the player’s “free speech.'"
Unless the employer is a government entity or there is law or regulation requiring the employer allow this kneeling behavior, the players have no "rights" to behave in a way the employer dislikes provided it is not shockingly unreasonable, dangerous, etc. But those areas are regulated through employment, contract and other laws and regulations, not the US Constitution. What is going on is a conflict between the rights of the employer and the rights of the player. Both have options the player could quit or, perhaps, take other actions, the employer could fire the player, and I am sure there are many other "disciplinary" options.
What this issue is not is a Constitutional question, unless the employer is somehow a government entity under the law. The people complaining this is a violation of the right to free speech do not understand the Constitutional schema, this is shocking.
What David gets right is that actions have consequences and what the players are doing are actions not the exercise of a "Constitutional Right" vis-a-vis a government actor. The players are getting off easy. None of my employers would have tolerated me behaving boorishly with anyone, I know because as a young attorney, I wrote a harsh letter to a physician, who I did not realize was also one of the firms expert witnesses. I was called on to the carpet and dressed down in no uncertain terms. I knew the requirements, and my options by the end. I apologized to the physician in writing, accepted my error, and learned valuable lessons in ego, humility, tact, grace, and grit, taking that shot took grit. I did not lose any pay or status, but I did need to request the senior attorney return my head at the end of the day. It was touch and go for a while.
May 28, 2018 at 10:39 am
If protest, in and of itself, were a right then things that would otherwise not be permissible would become so if done as “protest”. Blocking traffic is not permissible. Interfering in people going about their lawful business is not permissible. Vandalism is not permissible.
Some people think that these things become permissible under some “right to protest.” That’s nonsense.
What people have is the right to speak out against what they consider oppression. Protest using their freedom of speech. They have the right to write about it. Protest using freedom of the press. They have the right to come together in groups to show solidarity one with another, so long as they do so peaceably and do not interfere with other people exercising their own rights.
Too many people seem to have the idea that they can do whatever they please, no matter how they interfere with other people and the exercise of their rights, so long as they call it “protest”. Again, nonsense.
This is what I mean by no specific “right to protest.” You have rights that can be used as protest. In fact, one of the main reasons that right such as speech, the press, peaceable assembly, et al are considered such important rights is for their use as protest. Innocuous speech needs little protection. Speech that fawns on those in political power needs none. It is only controversial speech, and especially speech in opposition to those in political power that needs protection.
In fact, it becomes quite difficult to define what a “right to protest” would mean separate of the various rights that fall under the rubric of “free expression” without turning it into a claim that “protest” gives one the right to violate other people’s rights.
Claiming a right to “protest” to justify things such as blocking traffic, trespass, vandalism, even assault? No.
This is why I say there is no right to protest per se. The right is subsumed in other rights that one possesses. That use for protest is a large portion of why these other rights are deserving of protection does not make it a separate right.
Tell people you think that a certain politician is an evil, self-serving bastard who should be voted out of office or even ridden out of town on a rail is entirely protected by free speech. No need to invoke a “right to protest”. Writing diatribes condemning actions of the US government as atrocities is entirely protected by freedom of the press. Again, no need to invoke a “right to protest.” Getting together in a group (so long as it’s peaceable and doesn’t materially interfere with other people exercising their own rights) and shouting in unison that you hate a certain politician–free speech and peaceable assembly. No need to invoke a “right to protest.”
Where does a “right to protest” get invoked? People blocking traffic, preventing others from going about their lawful business because you’re unhappy with the way people of certain skin colors have been treated? No, you do not have a right to stop people from going on their way, not unless you have cause to arrest them in the name of “protest”. Throwing rocks through the windows of businesses because you don’t like certain actions of the police or courts? No, you do not have the right of destruction of private, or public for that matter, property in the name of “protest.”
And so it goes, anything you might legitimately do, by right, in the name of protest, you already have as a right. There is simply no need for a “right to protest” separate from the rights one otherwise possesses. There is nothing that a “right to protest” renders legitimate that is not already legitimate because of other rights that people possess.
First, I am unwilling to give an inch on any of my inalienable natural human rights. Look what has happened with regard to the the right to keep and bear arms (which is a sub right to the right to self protection). Once American's gave an inch progressives who want nothing more than to erode all human rights began dismantling this right from every angle. I am unwilling to say protest is not a right because it is very clear that as soon as I do, the progressives will show up and begin to dismantle the right to protest, and all of the other rights to freely act and communicate. They have already made great headway with this campaign in the Universities where the inalienable natural human rights regarding communication have been eroded to eliminate any right to use language others may find offensive.
On to my thoughts:
"As I said, other laws apply, vandalism is criminalized under state or local law. Vandalism is not part of the definition of protest. But many legal actions which are not "speech" are involved in protest which is both gesture and speech. Speaking out in front of a corporate headquarters is not just speech, it is a protest, but a protest which does not usually violate other rules. Just because someone takes two independent actions at the same time does not mean those actions are one. One can legally operate a vehicle and negligently kill a pedestrian. That does not mean killing pedestrians is the same as driving one's car. Train wrecking together ideas in the Constitutional realm is common, the Supreme Court does it all of the time, for example, inferring that free speech is part of free press, or that action is part of free speech. Conflating these independent but associated inalienable natural human rights is sloppy thinking by the Supremes.
We could go on all day picking the nits off each other's back. My point is that inalienable natural human rights are like a bundle of sticks they are often comingled and frequently viewed bunched together, in whole or part, as a single right. An example is free speech, which is not one of the rights enumerated in the Bill of Rights, only freedom of the press is enumerated. Press and speech are different as is protest, they are all rights or aspects of a bundle of rights we commonly think of as singular. Note: David raises another Constitutionally unenumerated right - free expression, which is not speech, but might include speech, it is not limited to protest but might include protest, or not, it is not communication through gesture or action, but it might include such. Like protest, press, and expression; free speech is one aspect of a greater bundle of inalienable natural human rights which we have never specifically named or even defined.
Anyway, this part of my discussion was, as I said, fussy exhaustion from trying to publish past midnight. If you took offense, forgive me it was unintended. My thoughts on the Constitutional schema and American's misunderstanding of the idea of "Constitutional Rights" are more important.
Like Sir Charles Napier, I do not much care if people misunderstand the Constitution. There are ways of addressing that issue. I do care when the politically elected Grand and Petite Poobahs bind the police and justice systems ability to correct these misunderstandings. Napier was addressing another situation where people failed to understand that what they wanted to do (a long custom of burning wives at the death of the husband) was proscribed by law, "'You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.”
This practice died out in India. The American tradition of misunderstanding the Constitution can die out in America as well, if we are willing to enforce laws like vandalism, assault, theft, breach of the peace. I say we need to get on with this post haste!"