Looking beyond the politics of the kneeling NFL players

Summary: Moving beyond the pieties, here is a look at the issues on both sides of the kneeling NFL players. Here we see the bolts are popping out of America’s social machinery. Let’s learn how to deal with these situations, since more of these lie in our future.

Miami Dolphins kneel during anthem
From left, Miami Dolphins’ Jelani Jenkins, Arian Foster, Michael Thomas, and Kenny Stills, kneeling during the national anthem before playing against the Seattle Seahawks on 11 September 2016 in Seattle. AP Photo/Stephen Brashear.

The controversy over the NFL players kneeling during performance of the “Star Spangled Banner.” There are multiple threads to this kerfuffle.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

— San Francisco 49ers quarterback Colin Kaepernick to NFL Media on 26 August 2016. He opted out of his 49s contract in March 2017. He remains unemployed by any NFL team. Details here.

“The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”

Statement by the management of the San Francisco 49’s.

First, there is the bizarre involvement of Trump, our clown president. He has gotten involved in this for the same reason President Carter scheduled the White House tennis courts (here, here) — they are lost in the job and focus on trivia that they understand. Except that Trump’s Twitter belligerence is worse than Carter’s harmless peccadillo.

Second, there is the conflict of values between NFL players (70% African-American, with incomes starting at $465,000 and soaring into the millions) and their largely white blue-collar fans (15% African-American, 26% earning $40k or less, 35% earning over $75k). Fans pay for expensive seats in stadiums built largely with their taxes – to watch political demonstrations from people with 10x their income. If this continues, the fans reaction could be big — and bad for the business of football.

Third, there is patriotism. Is this a fit subject for the president to interject himself (and so implicitly the government) into? Second, is it a good idea to make patriotic rituals — such as standing for the national anthem — be compulsory? The words of one of the Supreme Court’s landmark decisions illuminates both questions.

Remembering, Studying, and Living Up to Barnette.

By  John Q. Barrett from his website.
Reposted with his permission.

On June 14, 2018, people in the United States — many, and indeed most, people, I hope — will mark and celebrate the 75th anniversary of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette.  In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion made the children unlawfully absent, subjecting them to delinquency proceedings and their parents to criminal prosecution.

The Barnette decision was announced in Justice Robert H. Jackson’s opinion for Court.  He explained that the flag salute requirement violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although all of Justice Jackson’s Barnette opinion bears rereading, some particularly wise words to consider are his closing paragraphs:

“The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. 

“We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, 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.  If there are any circumstances which permit an exception, they do not now occur to us.

“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

In the views of many, Barnette is a high point in U.S. Supreme Court history and constitutional law and one of Justice Jackson’s very finest judicial opinions.  His words in Barnette continue to ring, loudly and true, to people who think them through.

One example came from the Supreme Court itself in June 2013, Barnette’s 70th anniversary year and month.  In Agency for International Development v. Alliance for Open Society International, Inc., the Court struck down as unconstitutional the part of an international program to combat HIV/AIDS that required grant recipients to “pledge allegiance to the Government’s policy of eradicating prostitution”.

With regard to that government effort to compel a pledge, Chief Justice Roberts wrote for the Supreme Court that “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago:  ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, 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.’”



John Q. Barrett

About the author

John Q. Barrett is a Professor of Law at St. John’s University in New York City, where he teaches Constitutional Law, Criminal Procedure and Legal History.  He is a graduate of Georgetown University and Harvard Law School. Especially see his book, That Man: An Insider’s Portrait of Franklin D. Roosevelt (2004).

See his C.V. and publications, and his website.

For More Information

How we got into this mess: “It’s True, The Government Paid the NFL to Stand For the National Anthem” by Elura Nanos at Law & Crime. This also explains that NFL owners can require players to stand during the Pledge.

See this insightful column by David French at National Review: “I Understand Why They Knelt.” Also, NFL ratings have fallen 11% year over year. Especially watch next week’s ratings to see the full effect of the players’ actions.

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Court, and especially these…

  1. A small incident that tells much about America – a flag gets lowered in a classroom!
  2. Poetic patriotic propaganda, suitable for humming while being stripped of your liberties.
  3. Why do we pledge allegiance to a flag, ignoring the Founders’ instructions?

See Professor Barrett’s book.

That Man: An Insiders Portrait of Franklin D. Roosevelt
Available at Amazon.

Here is an insider’s account of one of America’s greatest presidents, leading America during one of its most critical times. From the publisher…

“Robert H. Jackson was one of the giants of the Roosevelt era: an Attorney General, a still revered Supreme Court Justice and, not least important, one of Franklin Delano Roosevelt’s close friends and advisers. His intimate memoir of FDR, written in the early 1950s before Jackson’s untimely death, has remained unpublished for fifty years. Here is that newly discovered memoir.

“Written with skill and grace, this is truly a unique account of the personality, conduct, greatness of character, and common humanity of “that man in the White House,” as outraged conservatives called FDR. Jackson simply but eloquently provides an insider’s view of Roosevelt’s presidency, including such crucial events as FDR’s Court-packing plan, his battles with corporate America, his decision to seek a third term, and his bold move to aid Britain in 1940 with American destroyers.

“He also offers an intimate personal portrait of Roosevelt — on fishing trips, in late-night poker games, or approving legislation while eating breakfast in bed, where he routinely began his workday. We meet a president who is far-sighted but nimble in attacking the problems at hand; principled but flexible; charismatic and popular but unafraid to pick fights, take stands, and when necessary, make enemies.

“That Man is not simply a valuable historical document, but an engaging and insightful look at one of the most remarkable men in American history. In reading this memoir, we gain not only a new appreciation for Roosevelt, but also admiration for Jackson, who emerges as both a public servant of great integrity and skill and a wry, shrewd, and fair-minded observer of politics at the highest level.”

40 thoughts on “Looking beyond the politics of the kneeling NFL players”

  1. Irrespective of the politics of race and victimology, in one important point you are factually incorrect ( a mere oversight or typo I am guessing) but you placed the number of African American players as 15% of the NFL. That is the ascribed percentage of black fans. The percentage of players in the NFL is closer to 70% or so. (http://heavy.com/sports/2014/09/what-percentage-of-nfl-players-are-black-white/). If you choose to correct that factoid, please feel free to ignore or delete this post, as it was merely meant to correct your fact check. Thanks.

  2. I consider myself a solid American, but boy, sometimes I wonder when people are going to start sacrificing livestock to The Flag.

    When I heard about Trump riding this horse I thought: Is this some kind of effort to get people to turn away from other pursuits in favor of him? But that is probably giving him too much credit, and he has just chosen a fight he thinks he can, in some sense, win. I wonder if it will accelerate the decline of football as a popular support, which I’ve had speculative conversations about – and if so, what will replace it.

    1. The article mixes two different issues: one is the lack of respect to national symbols displayed by kneeling during the national anthem. Two is whether children should be forced to pledge allegiance.

      The controversy seems to be getting focused on whether trump should have criticized football players who kneel…the answer is a no brainer, of course he should. That’s a no loss move for him, because it seems the right thing to do to his supporters, and it wins over a lot of middle of the road voters who think kneeling during the national anthem is wrong.

      On the other hand, now we see the leftist media and the more radical democrats whining about free speech rights (which clearly don’t apply to an individual engaged in entertaiining the public during work hours). I see many “talking heads” who confuse free speech rights with insulting a national symbol during work hours, miss the ethical implications, and don’t seem to get theirs a limit, a boundary of decency crossed by these pampered highly paid athletes who probably never bothered to participate in a well organized protest in their lives.

    2. @Fernando: Do you feel that there should be laws passed, to mandate these demonstrations of respect? I suspect that would also be a “win” against “the leftists.”

    3. SF: based on my training as a manager for a large usa company, employees dont have 100% free speech rights while on the job. This means a business can regulate their behavior, and this includes forbidding any sort of political activities, wearing party symbols, or putting electoral propaganda in their offices.

      Within the USA, this is also regulated at the state level, therefore it’s important to have state specific work rules, which have to be disclosed, and which can be enforced.

      I would say the employers (the teams, the NFL, should have well defined enforceable rules which forbid displays of this nature by all employees, especially when they are in front of a national audience. The rules should also forbid hand or arm waving with well known political meaning, such as the Nazi salute or the communist left fist. This seems to be a common sense approach, and happens to be legal.

      I don’t believe the state (the government at any level) should engage in forbidding this type of behavior unless it is a sensible work rule. This means a state employee should not be allowed to put a sticker touting the local congressperson on a police vehicle, nor should they start shouting slogans for this or that cause at the tax collector’s office.

      When it comes to minors in school, they should be ordered to stand during the pledge and national hymn as a sign of respect for others, they can remain silent if they wish, but sitting or kneeling should not be allowed. They should also receive education on the Bill of Rights, what free speech rights is about, including a good lesson on why violence should not be used to silence those they don’t agree with (something we see too much in college campuses)

      And if it’s necessary there should be a constitutional amendment to make this type of Bill of Rights education mandatory. I’m tired of these disrespectful, lazy, self centered, and rude new generations. A little bit of education will help straighten them out.

    4. I can’t tell if your answer is yes or no. The best I can figure out is, “Yes, if you’re not someone in a position of authority,” which is about what it boils down to in practice anyway.

      As for the younger generation, consider: It is often said that one of the things that makes the white working class go for Republicans over Democrats, is that they feel that the latter are sneering at them. That’s not a sensory power one gains at age 50 while living in a swing state.

    5. Sf: An employer IS in a position of authority. The laws are already in the books. Regarding who benefits, If they start backing lack of respect for the national hymn and the flag, the democrats will go down the drain n swing states (as long as the economy keeps growing and if trump doesn’t make some sort of stupid blunder).

    6. SF,

      I agree on all points. As for what will replace it: perhaps football (aka soccer). We could keep the name of the sport, the team names, and the stadiums. They can sell off the NFL to fund settlements to the NFL players with brain injuries. The owners will lose big, making it a win-win.

    7. @Fab: Soccer seems likely. Basketball may also gain, though (while I love it) I think its appeal has a ceiling. I also doubt the NFL will collapse overnight – but what might have taken 20 years may instead take 12.

      1. SF,

        I agree that the NFL will not collapse overnight. But “we overestimate short-term change and underestimate long-term change.” The lawsuits against the NFL for brain injuries — and fear of future liability — might be a one-two punch difficult to withstand. Alienating their fans can’t help.

  3. The Man Who Laughs

    These fellows may do whatever they like during the anthem, but they are entertainers. There’s an old saying that those who live to please must please to live. Apparently the paying customers, or some percentage thereof, were not pleased. Given the size differential, I certainly can’t make the players do anything they do not want to do, nor would I. But neither can I make the fans pay to see it. To quote Maximus Decimus Meridius, “Are you not entertained?”

    As for Trump’s involvement, there are a couple of ways of looking at it. One is that by involving himself he envenoms the issue and gives the players and owners a chance to look like the heroes they most certainly are not. On the other hand, it may make a kind of short term tactical sense. Trump is likely to be removed by the GOP Congress if his popularity falls too low, so a Presidential Tweet about this swinish behavior may pump up his ratings for a few days and buy him a little more time in office.

    While I do not doubt that Professor Barrett is a learned man, I see no Constitutional or legal issues here. No one is threatening the gladiators with prosecution. They have a right to damage their business if they wish to do so, as long as their employers are willing to go along.

    1. Man who laughs,

      “they like during the anthem, but they are entertainers.”

      Yes, that is the point I made: “Fans pay for expensive seats in stadiums built largely with their taxes – to watch political demonstrations from people with 10x their income. If this continues, the fans reaction could be big — and bad for the business of football.”

      “see no Constitutional or legal issues here.”

      First, the President speaking out makes it a government issue. The Constitution explicitly makes this not the government’s business. America faces many serious threats and even more challenges. He’s not our moralist-in-chief. Second, see the red section of the Justice’s opinion — you will see that it is directly relevant to this issue. I put it in red to make it easy to see.

    1. Fernando,

      Trump’s Gallup job approval poll numbers has been in a sideways range from roughly 30% to 40% for four months. When it gets to the bottom of the range people say he’s finished. When it gets to the top, people say he’s becoming popular. It’s 39% today.

      In fact his support is down to his core, and it fluctuates as the fringes of his core support change their minds about him. Plus the random swings due to the 3% margin of error of the daily surveys.

  4. I was disgusted he dragged poor old Pat Tillman into it. This was a guy who, guided by patriotic motivations, passed up a lucrative contract, joined the Marines after 911 and went to fight in Afghanistan. He realised he was sold a crock of shit by GWB, turned against the war, and was killed in a tragic FF incident, then used as a cynical propaganda tool by the military who tried to turn him into some patriotic saint.

    This guy’s sad story was then co-opted by trump in a twitter rant.

    Truly this man is a carbuncle on the ring piece of humanity. Then his twitter comments on Puerto Rico, he is a man without pity or compassion, or empathy. I hope the US escapes without to much damage from his Presidency.

    The Republicans can still save there souls, it’s not too late.

    1. I think Longtrail means Fernando referring to Trump’s approval rating hitting about 50% by the 2018 midterms. (While this is not impossible, I guess, it does not seem likely, unless Trump has a road-at-Damascus moment.) Trump himself will not be up for re-election then, but I imagine the Republicans will do better if Trump is at 50% than if he’s at 35%.

  5. Standing quietly for an anthem is akin to being quiet in a church even if you are an atheist. Yes you may have the legal right to talk on your cell phone or chat with your pal but the right to do something doesn’t mean you should do it. Good manners would make an adult keep quiet. If you don’t want to conform to church rules don’t go to church. If you don’t want to stand for the anthem stay in the locker room.

    Standing for the anthem is however part of the show. As an entertainment business I think the owners, if they wished, could make attendance and standing quietly mandatory. Their problem is the players probably (rightly) think “they can’t fire all of us” and so far no owner has been willing to push it. We’ll see during week 4.

    I believe the patriotic hoopla at sporting events is largely phony so I’d be happy without any of it but let’s say 1/3 of fans agree and start to sit? How is “optional” standing leading to “unity”. It would seem the opposite.

  6. Trump is simply diverting attention from another failure to repeal Obamacare and the inadequate response to the disaster in Puerto Rico. The Colin Kaepernick kneeling protests are low lying fruit on the tree of racial division. The fact that Trump chose to exploit and enflame this issue is shameful.

    1. Richard,

      That probably explains Trump’s motives. It does not explain the reactions of the players orthe fans — neither of whom are robots in Trump’s play. These “top down” explanations — so beloved by think-tanks like Stratfor — obscure more than they enlighten.

  7. The Man Who Laughs

    “The Constitution explicitly makes this not the government’s business.”

    Then you had better inform Congress and the NFL that the antitrust exemption is unconstitutional. And while you are at it have them refund any tax money that ever went into those stadiums. And if Trump is as bad a President as all that and a plate of fries, then this may keep him out of other mischief.

    The players and the owners are perfectly free to ignore Trump if they wish, but actions do have consequences.

    1. Man Who Laughs,

      “Then you had better inform Congress and the NFL that the antitrust exemption is unconstitutional.”

      What is the relationship of that to the players’ kneeling – or Trump’s tweets? If you are going to make such a bold claim, please explain it so others can understand.

  8. I have a question about the SC decision. Could teachers be forced to lead the pledge?

    Also, the Abdul-rauf NBA player got fined for sitting out the pledge in the 90’s. Was this a violation of the first amendment?

    Finally, I viewed Trumps words as being consistent with the “bully pulpit” role of the Presidency. Now if he had added, maybe I’ll have OSHA look into head injuries and see if the NFL should be shut down. That would be government intrusion. Trumps words were similar to Obamas promise to destroy the coal industry. Agree?

    1. OPKS,

      “Was this a violation of the first amendment?”

      The First Amendment concerns government actions. Not those of employers. There is another — and separate — body of law concerning the rights of employers and employees.

      “I viewed Trumps words as being consistent with the “bully pulpit” role of the Presidency.”

      That would justify literally anything the President said. I doubt many Americans would agree with you that the President’s role is that large. This is, of course, referring to the extra-Constitutional aspects of the job.

    2. Dear Editor of the FM website,
      Thank you for your kind response. However, my first question dealt with what I have come to regard as misleading in the article.

      Namely, this:
      “In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students participate in a salute to the American flag and a recitation of the Pledge of Allegiance.”

      I went to the Barrett piece and the Barrette decision and the misleading part of the quote above is the inclusion of “school teachers.” It appears to me that school boards may require that public school teachers participate in a salute as a condition of employment.

      However, many of the Facebook First Amendment scholars I have had polluting my news feed quote Barrette as disallowing the compulsion to participate in the pledge or the national anthem. Hence my original question in number 1 above.

      Regarding your response to question 3, I don’t believe that the “bully pulpit” role excludes anything that the President says, I explicitly included language regarding siccing OSHA on the NFL that I thought crossed the line. Another example would be if he were to say, “I’m putting Lois Lerner on examining the NFL’s status as a non-profit organization.” Do you see the difference? It seems plain to me.

      Thank both you and Larry for your thoughtful replies,
      OPKS Jimbo

      1. OPKS,

        That’s a great catch — about Barnett’s applicability to teachers. I’ll ask about it. I’m not an attorney, but the ruling seems clearly to overturn the entirely of the State of West VA regulation. It does not limit the ruling to just students.

        “The decision of this Court in Minersville School District v. Gobitis and the holdings of those few per curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is affirmed.”

        As for the Bully Pulpit, beliefs about its appropriate use concern non-constitutional aspects of the Presidents’ role. So they’re inherently subjective. I agree with the examples you give that are clearly “over the line” and inappropriate. But imo the President shouldn’t be involving himself in this issue. We elect him to run the Executive branch of the Federal government, not as God-Emperor to comment on every aspect of American life. Presidents already have a tendency to megalomania. Let’s not encourage this.

        On an operational note — Presidents’ overuse of the Bully Pulpit, shooting their mouth off on anything they hope might give them another point in the polls, might be one reason that the Bully Pulpit is of near-zero effectiveness (as so many studies have shown). It gets headlines from click-hungry news media, and that’s all.

  9. If a president is strong enough to compel citizens to stand for the National Anthem (through coercion of their employers and boycotts), then what else might such an Executive demand?

    If it is important for players and performers to display proper etiquette toward the flag, is it equally important for those in the stands to observe the same proprieties? If not, then why?

    Finally, I ask the same question that has continuously cropped up during my lifetime: is protest and dissent unpatriotic? Or is the demand for display of patriotism simply a way to stifle protest that you find disagreeable?

    1. gottschee,

      “if a president is strong enough to compel citizens to stand for the National Anthem (through coercion of their employers and boycotts)”

      He’s not. Massive research shows the “bully pulpit” theory is an urban legend. That the President speaks out on the side of the majority about a subject of public interest doesn’t mean he influenced anything. This is the post hoc ergo propter hoc fallacy that has supported superstitions for millennia.

  10. While I do not have complete freedom of speech at my workplace, my employer also does not force me to engage in any overt political activity. Were they to require that I participate in patriotic propaganda that is completely unrelated to our core business, I would not consider it “part of the job”.

    The NFL was paid by the Department of Defense to propagandize military support in an effort to boost armed forces recruiting. These payments were for military appreciation efforts, including performances of the national anthem. While support for the idea of national defense isn’t particularly political, support for the militarization of our national conscience is. The idea that “respect” for the national anthem is equal to a very specific form of military patriotism (as noted often in the comments here and elsewhere in media coverage) is one that has been cultivated through targeted propaganda programs. I would argue that efforts to reform public consciousness towards support for unquestioned militarization is a political act.

    The militarization of our police forces is well documented, and is arguably one of the contributing factors in the escalation of violence in our communities. Many of these “millionaire athletes” come from communities that are deeply affected by this escalation. Suddenly becoming a millionaire does not automatically sever all ties to friends, family, and the communities one grew up in. Forcing NFL players to participate in a political act that is oppositional to their political interests understandably creates internal conflict. It is not just coincidence that their peaceful protests are targeting militaristic propaganda.

    The fact that the President of the United States is questioning their right to protest (with widespread support for his position among the populace) is a testament to the power of propaganda and proof that we are losing the ability, as a society, to safeguard democracy.

    1. Free Thrower,

      “While I do not have complete freedom of speech at my workplace, my employer also does not force me to engage in any overt political activity.”

      A valid point. But irrelevant here. What team is doing so? In fact the owners have been moderately supportive of the players. A more relevant question is the price — if any — paid by the NFL (and eventually, the players) for this protest. They are entertainers. Angering the customers is bad for business.

      “The NFL was paid by the Department of Defense to propagandize military support in an effort to boost armed forces recruiting.”

      That’s an important point to remember, but quite irrelevant to the issue of standing during the national anthem.

      “The militarization of our police forces is well documented, and is arguably one of the contributing factors in the escalation of violence in our communities.”

      True, but also irrelevant.

      “The fact that the President of the United States is questioning their right to protest (with widespread support for his position among the populace) is …proof that we are losing the ability, as a society, to safeguard democracy.”

      Wow. That’s over the top. US history — and the history of every other democracy — overflows with these kind of kerfuffles. Democracy, like all political systems, is imperfect because people are imperfect. Whatever happens to the NFL, drawing such grandiose conclusions seems unwarranted.

  11. Well said Free Thrower – and all very relevant. Kaepernick was trying to draw attention to a very clear and specific issue: the demonstrable reality of racial injustice in America. Since that reality can’t/won’t be addressed directly, it becomes about the ‘flag’, ‘respect’, and the usual culture war proxies. The troop worship in the US is really one of the weirdest things about the culture . Even ostensible liberals qualify any criticism of the Iraq War or some other FP disaster, no matter how justified, with the usual ‘…but I support the troops’.

    1. Jordan,

      That’s not wrong. But here’s an alternative perspective — one that, imo, shows a better path to the future.

      The Republican Party is as an institution a loyal servant of the 1%. As are the neoliberals. But nothing warms the heart of the 1% imo as does the Left’s identify politics. Only an alliance of the populists and progressives can defeat the 1%, as in the New Deal. The inherent divisiveness of the Left’s identity politics makes that absolutely impossible. Focusing on fractional politics furthers the careers of group leaders but diverts attention from issues that affect us all and leaders that can unite us.

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