Gary Bruce discusses the Federal Code and law which relates to the controversy over people not standing for the American flag. The United States Flag Code, passed in the 1920’s, sets forth set of rules for patriotically observing the American flag and instructs what is to be done with the flag in different circumstances. The first section of the U.S. Flag Code deals the custom for how to stand during the National Anthem and how to salute the flag – stand up, take your hat off, put your hand over your heart.
However, while there is a “ code” section, there are no penalties for non-compliance and there is no provision for Flag Code enforcement. Attempts to make destruction of the flag punishable have been ruled unconstitutional in the past. Therefore, the question becomes; is a law really being broken if there is no penalty for kneeling?
Narrator: Now, answering your questions about the law and legal issues, this is Legal Break with attorney, Gary Bruce.
Maureen: Maureen Akers here today with Gary, Thank you so much for joining us again.
Gary: Good to be here again, Thank you.
Maureen: Well we are talking about a very hot topic. It’s been in the news for a while, kind of started with Colin Kaepernick kneeling during a national anthem playing. So tell us, is there a federal law stating that I have to stand when the national anthem is played?
Gary: What Jeff Sessions says, there is, and in a sense he’s right. There is the flag code, you can google it, you’ll find it. It is a set of rules for patriotically observing the flag, and how to deal with the flag, what to do with the flag, where it can be hung, all those things. But the first section really is dealing with what to do when the national anthem is played and the flag is in the presence of you. You’re supposed to stand, take your hat off, put your hand over your heart, and face the flag, and that’s what it is. But here’s now here’s the deal, there’s no penalties, there’s no enforcement, it is suggestions. It is it is a code, but without any kind of- there are no flag police. So, is it a law if there’s no penalty? You know it is what it is. Where we’ve seen laws extend is what to do if somebody desecrates the flag, say burns the flag. And a lot of jurisdictions have tried to do that over the years, and the Supreme Court has held it is not a violation, it’s not a punishable act, it is free speech. So, I don’t know where that’s headed because that was a 5-4 decision the last time it was addressed. We’ve changed kind of the nature of the court recently- that could be up for debate, but right now those laws are not constitutional. So, is it constitutional to tell somebody they have to stand? I really don’t think so, if you can burn the flag and that’s freedom of speech, then I think you can violate the flag code, and not be in violation of of the law.
Maureen: Yeah, so what about though clothing and as it pertains to I guess, wearing of the flag. You can wear a patch of the flag, but what if you, you make Halloween costume or something out of the flag?
Gary: Well go read the flag code. You’ll find there’s a lot of stuff in there that we do kind of routinely now, that might be violation of it just as much as kneeling. So wearing a flag shirt, you’re not supposed to make clothes out of flags. But what’s a flag? You know, is that is that when you take it down off the pole and make a shirt out of it, is that what it’s intended for? Or if you just press it with that design to begin with. So you know, there’s issues that abound in this- kind of like some things, we pick and choose what we want to be upset about. But, I don’t think there’s really a law that’s being violated, there is suggestions that maybe are not being followed.
Maureen: Right, right. And a very emotional topic with a lot of folks on many different levels.
Gary: Well, certainly it is.
Maureen: Yes, very good. Thank you so much for joining us today, Gary, and we look forward to seeing you on the very next, Legal Break.