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FILE - In an Oct. 26, 2017, file photo, Rep. Marsha Blackburn, R-Tenn., leaves the House chamber. (AP Photo/J. Scott Applewhite, File)

U.S. Rep. Marsha Blackburn, who wants to succeed Bob Corker in the Senate, released a radio ad Friday criticizing professional football players for kneeling during the national anthem to protest racial inequality and police shootings of African-Americans. The ad reassures Tennesseans that she "stands for our veterans, the president and 'The Star-Spangled Banner," in case anyone doubted.

It is also reasonable to believe she also stands for the Constitution. Every new Congress begins with members repeating the oath to that they "solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies ... [and] that I will bear true faith and allegiance to the same. ... "

The NFL protests have been described as political but that is not entirely true. It is more accurate to describe them as constitutional protests protected by the First Amendment's guarantee of freedom of speech.

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Michael Loftin

Blackburn's ad, the Times Free Press' Andy Sher reported, begins with an announcer saying, "Veterans. They fought for our freedoms and they deserve our respect — every single day," and then segues into Blackburn's "stand" cited above.

The 2010 census estimated the population of Tennessee at more than 6.3 million. So that raises an obvious question: Reckon most Tennesseans agree that veterans deserve our respect? The question answers itself.

The NFL national anthem protests are controversial because they made people uncomfortable. But the exercise of free speech is often discomforting. Nevertheless, America's founders thought it so valuable that they enshrined it in our Constitution.

All that said, it is obvious that kneeling during the anthem is not nearly as controversial as two cases that produced historic U.S. Supreme Court rulings on the First Amendment.

In West Virginia Board of Education v. Burnette the Supreme Court ruled — in 1943, yet —that the Free Speech Clause of the First Amendment forbids forcing public school students to salute the American flag or recite the Pledge of Allegiance to the flag. The court's decision was a significant victory for Jehovah's Witnesses, a denomination whose members are forbidden, under Exodus 20:4 and 5, to pledge to national symbols, including a flag.

Significantly, the decision included this memorable statement: "If there is any fixed star in our constitutional constellation, it is that no official ... can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein."

The justices emphasized their ruling by releasing it on Flag Day.

Nearly 50 years later, in a ruling prompted by a Dallas protest against Reagan administration policies, the court said that burning the American flag is a form of expressive conduct (the state of Texas conceded as much) and was also protected by the First Amendment.

Is burning the flag offensive? Sure. But a majority of the Supreme Court justices, including renowned conservative Justice Antonin Scalia, overruled a lower court. They held that government "may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved ... Moreover, this court will not create an exception to these principles protected by the First Amendment for the American flag alone."

Given those Constitution-based decisions, Blackburn's criticism of the relatively insignificant NFL protests is unpersuasive. If she bases her criticism on support for our nation's veterans, even that argument is flawed.

In her ad she argues that "it is important that each of us take that three minutes and use that as a time to sing those words. You have freedom of speech, you have a right of peaceful protest, but during that three minutes that belongs to people who have fought to defend the freedoms that we have."

But those three minutes belong to all Americans, not just to veterans — most of whom would agree. Americans are united in appreciating the veterans' valuable service in defending our freedoms. Would that Blackburn had acknowledged that those freedoms include the right to protest.

Michael Loftin is a former opinion page editor for The Chattanooga Times.

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