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Andrew P. Napolitano: Is taking a knee protected speech?

— Supreme Court of the United States in Street v. New York (1969)

Sometimes the public expression of unwanted ideas reaches directly into our living rooms. When President Donald Trump attacked a half-dozen or so professional football players who, instead of standing during the traditional playing of the national anthem prior to football games, “took a knee” by kneeling on one or both of their knees during the anthem, hundreds more players on national television took a knee in defiance of the president.

Here is the back story.

Last year, a quarterback for the San Francisco 49ers, Colin Kaepernick, began quietly taking a knee at NFL games to protest what he said was the excessive use of force by police. He was the subject of mild but largely below-the-radar criticism by those who thought sincerely that taking a knee publicly during the playing of the national anthem was a sign of disrespect for the flag and the anthem and thus for this country.

When a few of his buddies and former colleagues — he is no longer a member of an NFL team — followed suit for a variety of reasons, all of which centered around the right to protest the policies of the government, Trump saw a political opening.

At a rally in Alabama last month, Trump aggressively attacked the practice of taking a knee. He argued that it was so disrespectful to the American flag and the national anthem that those who had taken a knee should be fired from their jobs.

This pronouncement focused a spotlight on the six or so scattered players who had followed Kaepernick’s lead, and soon hundreds were doing so. The president took their behavior as an affront to him and to the nation, and he persisted in his attacks on the players. Soon, some team owners joined their players in various means of expressing solidarity with those who had taken a knee.

When the players union backed up these silent expressions of political opinions, it argued that all of its members have a constitutional right to express themselves in uniform in their workplace. Do they? The short answer is that it depends on where the players are when they take a knee.

Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one’s head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.

Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management’s political or patriotic views constitutes interfering with speech. May employers do that?

In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so.

So in states such as Texas, an employee who refuses to comply with an instruction from management to conform to certain behavior in public — e.g., standing during the playing of the national anthem — can be disciplined, as Texas lacks the added protections for individual workplace expressions that a few states provide.

However, even in the states that lack the employee expression protection, if management’s instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.

Thus, in states where the government owns the stadiums or where expressive conduct in the workplace is protected, employees may engage in expressive conduct in defiance of management, as long as their conduct does not interfere with the workplace. Just as the government may interfere with speech for non-content-related reasons — for example, noise at night or safety in a crowd — management may interfere with speech when the speech itself interferes with the business of the workplace.

If team management could show that taking a knee materially interferes with the workplace product — money for the owners resulting from players winning football games — because it chases away ticket buyers or reduces advertising or media revenue or impairs team morale and thus produces poor play, it would have a strong case, even in the states with employee protection laws and even in venues owned by the government.

In the famous flag burning cases a few years ago, the Supreme Court made clear that in America, we have no revered symbols that command orthodox respect. The flag itself represents the right to treat it as one wishes. We are free to respect the flag and to shun those who do not, but we may not harm a hair on their heads.

I am with the French philosopher Voltaire, who, regarding folks who had literally lost their heads, is reputed to have said, “I disagree with what you say, but I will defend to the death your right to say it.”

Letter: Thanks for supporting Firefighter Challenge


I’m writing to thank the Elko community for their support and to thank our many generous local businesses for their sponsorship in the Scott Firefighter Combat Challenge that took place July 21st and 22nd.

I would like to thank Northeastern Nevada Regional Hospital for being our primary sponsor and special thanks as well to Gold Dust West Casino Elko for providing the perfect location for the event, Hampton Inn by Hilton for providing rooms to the Scott FFCC crew and discount rooms to competitors.

I want to thank Newmont Mining and Barrick Nevada both for their sponsorship and the stiff competition provided by their mine rescue teams. I’d like to thank Canyon Construction, especially Councilman Robert Schmidtlein, for the extra help fundraising. Thanks to Mike Gallagher and Gallagher Ford, Chief Burgess and C-Spider Rescue, Marc Williams and NNE Construction, Trinity Steelman and LP Insurance, NV Energy, and Western Nevada Supply. Also Cashman Equipment, 5th Gear Powersports, The Star Hotel, and Remington Construction. Thanks to all the members of Lee Engine company, Riverton Elko GM, TKS Services, Carter Engineering, State Fire, and On the Level Home Inspection.

I wish to thank Terry’s Pumpin n Potties for providing restroom facilities and Elko Air One for providing Emergency Medical Services. Thanks to Farnes Williams and Gunworld & Archery and Councilman Reece Keener and Print n Copy. Also thanks to Vogue Services for their continued support. A huge thanks to Jeff Watson and Empower Fitness for the lift-athon fundraiser. Last, but not least, thanks to all the members of the Elko Firefighters Association local 2423.

I recently returned from Tyler, Texas where I competed in the U.S. National Championship. I was fortunate enough to place third in the age 45-49 age group for the second consecutive year. I will be traveling to Louisville, Kentucky October 23-29 for the Scott FFCC World Championship.

In closing I would like everyone to know I will again be seeking sponsorship to host another regional Challenge event next year! If anyone is interested in being a sponsor for next year’s event or my competition in Kentucky please contact me.

Jason Logsden


Commentary: Groundhog Day for the gun controllers

We were greatly saddened and angered by the October 1 attack launched by a terrorist from MGM’s Mandalay Bay Hotel in Las Vegas on the Route 91 Harvest Festival 2017 music concert.

The people we know who were at the concert all had left prior to the attack or managed to get away unharmed. But we have friends who lost people in this horrendous attack. And even folks who did not know anyone directly affected by this mass murder are rightly shocked, angered and troubled by it.

However, the reaction to this event by politically correct liberals and their media amen corner is nothing but a version of the classic film Groundhog Day. That’s the movie in which the main character must relive the same day over and over again until, as one online summary says, he gains some karmic and comic insight into his life.

Unfortunately, the left and media show no signs of karmic insight or any other kind. Instead, each event such as this one presents them an opportunity to rehearse yet again their tired gun control litany. As Chicago Mayor Rahm Emanuel says: “Never let a serious crisis go to waste.”

So, they have demanded and gotten all kinds of measures passed over the years to apparently no effect at all. They’ll do it again by banning bump stocks, which the shooter in Las Vegas used. And again, it will make no difference of any consequence.

Why? As long as there are individuals willing to trade their lives for the lives of their victims to make whatever point they are trying to make, they will have some degree of success. Indeed, there seems to be an endless supply of such demented persons. And no amount of new gun control laws will stop most such events.

People who plan to perpetrate violence are not people who follow the law in the first place. So, new laws will not deter them, regardless of how restrictive they are. Murdering 58 people is already against the law, whether you do it with a gun or a bomb or a vehicle.

If laws were effective against such insanity, the terrorist would have decided to take all of his guns and go home when he recognized the Mandalay Bay Resort was a gun free zone. He would have scotched his plan entirely because he was violating resort policy even bringing one gun onto the property.

As John Lott noted on Fox News: “All four of the 2015 mass shooting public events (in France) involved machine guns …” Yet, they are illegal, just as they are in the United States. So, how did those gun laws save any victims?

In the Paris attack in November 2015, 89 people were executed in the Bataclan theatre. The terrorists had automatic weapons, and the unarmed concert goers in the theatre were simply lambs that were slaughtered.

The law will not stop the lawless.

Gun owners also realize the stakes. Bump stock sales have gone through the roof since the attack. Why? Because people won’t be able to obtain a bump stock except on the black market after a new law is passed. Most did not even know what one was until this event.

So a new law will cause this minor effect but have no effect on safety of the American people. The gun control lobby knows this, and what they really want is the elimination of all guns in private hands. And thus the elimination of the people’s inherent and essential right to self-defense.

But that won’t happen – thank goodness. And so they’re reduced to doing something purely symbolic to demonstrate their alleged virtue on the issue and con themselves into believing they’ve done something about the real problem – which they have not and will not.

Mass murder and the mayhem caused by events like the one in Las Vegas is a serious problem we need to address. But we don’t yet know the answer and we may not know it for a long time. Just doing something ineffectual and purely symbolic is not a reasonable substitute but is instead a waste of time and resources.

What’s needed is an adult approach to the issue.

Commentary: Think of senior dogs this Adopt-A-Dog Month

Along with pumpkin spice and everything nice, October is known as a month of change. With the leaves turning and the weather finally cooling down, people and pets alike are starting to snuggle up on the couch and enjoy fall. Dogs young and old are looking for new homes before the cold of winter settles in.

That’s why every October my organization, American Humane, encourages animal lovers to consider adopting a dog from a local shelter or rescue group in honor of our nationally celebrated Adopt-a-Dog Month.

Despite a recent uptick in shelter adoptions, each year an estimated 670,000 dogs are still euthanized at shelters across the country before they can find their forever homes.

While all dogs need a loving home, often the hardest ones to place for local shelters are older animals. Lots of those pets are overlooked by adopters, but there are so many reasons why dogs over the age of 6 make ideal furry family members.

For one, senior dogs tend to be less rambunctious than younger dogs — a great quality for families with young children. Also, they’re often already house-trained, spayed or neutered, and have had other behavioral issues addressed, which makes them a great fit for people with busy lifestyles.

For those who already have all the pets that they can handle, there are still steps that can be taken to help celebrate dogs in our lives. Spaying and neutering pets prevents unwanted and unplanned puppies. It also has been shown to increase the lifespan of the animal while reducing behavioral problems.Also, make sure to microchip and tag your dogs. You never know when a door latch will break or a hole under a fence will be dug. If you’ve taken these simple identification steps, you’ll be reunited with your best friend more quickly than if you hadn’t.

And don’t forget, if you can’t open your home permanently to a new best friend, there are many shelters that will work with individuals to foster animals temporarily. You get a pet on a short-term basis while the shelter finds the pet a forever home, and you keep a spot open at the shelter, which helps an animal that normally would not have had that opportunity. When the fostering is over, you can choose to foster a new animal or take a break — perfect for people with seasonally busy schedules.

With so many ways to help man’s best friend, it is the perfect time this October to help the animals in our communities – whether it’s by adopting a senior dog, fostering a puppy, or microchipping the pets you already have. This fall you can make a difference in the life of an animal, and perhaps gain a new best friend.