ACLU of Tennessee: Prohibiting student-athletes from kneeling would be unconstitutional

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FILE (AP Photo/Charles Rex Arbogast, File)

NASHVILLE Tenn. (WJHL) — The ACLU of Tennessee says university policies preventing student-athletes from kneeling during the playing of the national anthem would be unconstitutional if implemented.

The organization released a statement on Tuesday after state lawmakers criticized East Tennessee State University’s men’s basketball team for taking a knee during the national anthem.

Some lawmakers have questioned if such conduct by student-athletes is protected under the First Amendment.

Tuesday, 27 Republican state senators signed a letter encouraging Tennessee’s public universities to implement policies prohibiting student-athletes from kneeling. None of the six Democratic senators signed the letter.

The ACLU of Tennessee released the following statement:

“The ACLU of Tennessee commends the ETSU men’s basketball team for using one of our nation’s most valuable and practical tools for advocacy – freedom of expression. These young people exercised their constitutional rights to protest systemic racism and police violence. Freedom of expression does not cease to exist if you walk onto a basketball court – especially if you attend a public university. Your ability to protest peacefully does not disappear because of a scholarship, and your First Amendment rights are certainly not tied to lawmakers’ reactions to the content of your speech.

“Yesterday, during a Government Operations Committee hearing, state lawmakers used their platform to attack and insult these student-athletes. Tennessee senators doubled down this afternoon and sent a letter to leaders of public colleges and universities to adopt policies within their athletic departments to prohibit peaceful protest.

“Such policies would be unconstitutional. The U.S. Supreme Court has long held that neither public schools nor legislators can force their definition of patriotism on students by requiring students to participate in compelled speech. These students can say what they want as long as it does not disrupt the learning process.

“When public universities play the national anthem, they are opening a public forum for free expression under the First Amendment. Public universities cannot then turn around and censor students for expressing themselves by taking a knee. ETSU’s support for their students’ free expression is constitutional, appropriate, and in keeping with academic ideals of promoting free thought and dialogue.

“Tennessee lawmakers, on the other hand, are proposing that Tennessee’s universities create unconstitutional policies. Today’s letter fits a recent pattern: state legislators have used their extraordinary power to chill the speech of those who take a stand, or a knee, in protest of racial inequality.

“Six months ago, Governor Bill Lee signed into law SB 8005, a bill enhancing offenses commonly associated with protests. The bill had its intended effect: swiftly ending the 62-day long People’s Plaza Protest in support of racial equity. Tomorrow, the House Criminal Justice subcommittee will hear HB 513, a bill that grants immunity to drivers of vehicles who run over and kill a protester in the street. While Tennessee politicians talk a good game lauding the First Amendment, they are simultaneously busy taking action to shut down the speech of anyone with whom they disagree.

“The peaceful actions of the ETSU basketball team may offend some. Their freedom of expression, though, is not bound by lawmakers’ fragile sensitivities.”

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