Donald Trump’s recent tirade against protesting NFL players came to a head today on Sunday, September 24, 2017, with several players from different teams opting to kneel during the national anthem in protest. In one case, the Pittsburgh Steelers eschewed going out onto the field for the anthem entirely, citing a need for unity and focus away from things other than playing football. Still, the President of the United States saying that these protests should lead to players being fired brings up an important question. What is the legality of a civil protest during the National Anthem and is this disrespectful to the flag?
To answer these questions, we should turn to the source of all Federal Law in the United States, the United States Code. The flag is covered under an entire chapter of Title 4, with an entire section devoted to respect for the flag – Title 4, Chapter 1, § 8 – Respect for flag. This section details things that are considered disrespectful to the flag, covering all manner of sins, from carrying the flag horizontally to the flag never being impressed on paper napkins. A Twitter user named HennyWise detailed many of the common violations of that section in a lengthy tweet that exploded in popularity over the internet.
These arguments have been expressed numerous times, some appearing even on conservative sites. One such instance was on January 9, 2016, on The Sean Hannity Show’s forums where a forum user by the name of “altair 1013” stated the following.
“Okay the NFL loves to bring out the football field sized flags for big games. In fact they do it so often it has become cliche. If you need a stadium sized flag to get inspired then you have other issues. It’s time to start treating our flag with respect.
1) The flag should not be treated as a prop in a show.
2) The flag should NEVER be displayed in a horizontal position.
3) The flag should NEVER be held during the national anthem, it should be aloft and free.
During the national anthem prior to the Chiefs/ Texans game the holders of the flag actually shook it to simulate a flag flapping in the breeze. Simply awful. Forget code, forget tradition just do what looks cool. Clueless.”
Of course, this brings up the question of what the penalties are when someone does violate this section of the U.S.C. After all, the U.S. Code is the law of the land. Surely there must be some penalty laid out for violating it. Unfortunately – or fortunately – there is not. In a Congressional Report updated on April 14, 2008, titled, “The United States Flag: Federal Law Relating to Display and Associated Questions” the report states that, “…the Flag Code is intended as a guide to be followed on a purely voluntary basis to insure proper respect for the flag.” The report goes on to say that the “…Flag Code does not proscribe conduct, but is merely declaratory and advisory.”
This means that even the modicums of respect that are laid out in the Flag Code in 4 U.S.C. § 8 are entirely voluntary.
There is, however, one place where violating a part of that section will land you in hot water. In 4 U.S.C. § 3, it states that if you are in the District of Columbia, and you use the flag for advertising or merchandising purposes, you are guilty of a misdemeanor and can get a fine for up to $100, 30 days in jail, or both, depending on the discretion of the court.
However, for those who wish that there were an actual punishment for the violation of flag-related conduct, there’s still a way. 4 U.S.C. § 10 has provisions for the modification of the rules for the flag code. The person who can make adjustments to the flag code – and the only person – is the Commander in Chief of the Armed Forces of the United States, aka, President Donald Trump, with no oversight from anyone else or any other branch of the government. Whether he could make the new section mandatory would be a decision for the courts, but considering his track record with things like immigration, that’s not likely to deter him.
[Featured Image by Chris Carlson/AP Images]