October 19, 2017

Taking a Knee or Saluting the Flag

by Reuben Guttman, Founding Member, Guttman, Buschner & Brooks PLLC

*This piece was originally published on Huffington Post.

As President Donald Trump takes on the National Football League (NFL) and challenges players for kneeling during the national anthem, I am reminded of two athletes who made headlines four decades ago but whose names have perhaps faded from the American psyche.

It was the fall of 1968. Martin Luther King and Bobby Kennedy had lost their lives to assassin’s bullets earlier in the year. Across the nation, college campuses were fraught with unrest from antiwar and civil rights protests. A strong showing by upstart candidate Eugene McCarthy in the New Hampshire primary forced the withdrawal of incumbent President, Lyndon Johnson, in his race for re-election. The nation was one month away from the Nixon Presidency.

In Mexico City, on October 12, the Olympic torch was lit with games presided over by Avery Brundage, an American who chaired the International Olympic Committee (IOC). Brundage, of course, had served as U.S. Olympic Committee Chairman during the 1936 Olympics in Berlin, resisting an American boycott of those games. The 1936 Olympic team had two Jewish runners – Sam Stoller and Marty Glickman – who were slated to run in the 4 x 100 meter relay. They were pulled from the event at the last minute.

Thirty-two years later, prior to setting sail on his 200-meter race in Mexico City, one runner – Tommie Smith – made clear that if he won in Mexico City, he did not want to receive a medal from Brundage. Smith did win, securing a gold medal. His teammate, John Carlos, won the bronze medal in the 200 meters. Standing on the platform as the National Anthem played, Smith and Carlos bowed their heads and raised their black gloved hands in a black power salute with an image now etched in the American psyche. For his part, Brundage – true to form – ordered Smith and Carolos to pack their bags and banned them from Olympic competition.

I remember that image and I remember Tommie Smith. Years later when I had a talk show on my college radio station, WRUR in Rochester, New York, I had Smith on my show. By that time, about 1980, Smith had become a member of the National Track and Field Hall of Fame. For a person who had made national headlines and seemed to rile at least a segment of the nation years earlier, Smith was low key, thoughtful and passionate. He impressed me as someone who appreciated that the elegance of our rule of law is that it is continually a work in progress with protest – as protected or otherwise inspired by the First Amendment – being the driver, delivering change where necessary to achieve fairness and a more even-handed rule of law.

As President Trump calls for a compelled allegiance to the flag in a form consistent with his purported values, I cannot help but think about Tommie Smith. I wonder whether by kneeling, or raised fist, or locked arms, the individuality by which we salute the flag – whether by protest or traditional means – is perhaps the highest honor that we can bestow on our democracy. Of course, while honoring the flag also means remembering and honoring those who gave their lives to protect our democracy, it cannot be forgotten that, among the things that our nation has fought to protect, is the right to peacefully voice dissent. The ability to do so without fear of repercussion is what has already made America great.


Constitutional Interpretation, First Amendment