Originally published with NOQ Report.
On Saturday, a Twitter thread went viral after citing portions of U.S. Flag Code which, the writer asserts, are regularly violated by the average American.
Leftist media sources like Huffington Post and Quartz leaped at the opportunity to mock flyover Americans for their alleged hypocrisy, and a quick topical search of “Colin Kaepernick” on HuffPo shows that they’ve supported him and other kneelers over and over and over again, not simply in their right to protest but the overarching claim that an unjust America doesn’t deserve such reverence.
Quick digression: no one (intelligent) has made the argument that the Kaepernick crowd has no constitutional right to sit or kneel or otherwise peacefully protest the national anthem. However, I’ve heard several of my Leftist friends who are incapable of making a legitimate argument set this up as a strawman in order to pick apart an easy target. Of course he has a right to kneel, just as I have a right to call him an ungrateful moron for doing so. We have the right to do a great many stupid things in America, but that doesn’t mean that the proper response is to do every stupid thing at our disposal. The right to burn the American flag should not be celebrated by burning the American flag, just as the right to drink alcohol shouldn’t result in a constant state of inebriation. But back to the thread.
The intent of this thread is clear: to equate touting a t-shirt with the image of an American flag with actively protesting America’s honor and virtue by kneeling during the national anthem and claiming that the country systematically “oppresses black people and people of color,” as Kaepernick has.
Many Leftists are branding this an epic “gotcha!” moment, but it operates on two flawed premises: 1) that all violations of Flag Code are inherently equal, and 2) that the tweeter’s interpretation of Flag Code is factually accurate.
When discussing apparent violations of U.S. Flag Code, there are three things that absolutely must be considered, assuming the intent is to have a reasoned, intelligent conversation.
As much as possible, I want to limit this discussion to the legal question at hand, shelving the broader debate concerning how the NFL, Colin Kaepernick, ESPN, Donald Trump, and the average American should respond. The NFL has already been clear that this is a political issue for them, not one of free speech. Their bias in selective enforcement of uniform policy, for instance, is obvious. So I’ll try to shy away from the politics of the debate and stick to the facts.
Here are the three steps to use in evaluating Flag Code:
1: U.S. Flag Code Is Empty Law
By this, I mean that it is unenforceable. As such, you might say that the provisions are more guidelines than actual rules. The Supreme Court decided in United States v. Eichman (1990)that the criminalization of flag burning was unconstitutional, making anything less (and almost anything else is less) unquestionably justified from a First Amendment standpoint. This also means that, should you and I disagree on how to interpret existing Flag Code, which is certainly plausible, there is no jurisprudence to back up either of our claims. If we can’t convince each other, we’ll have to agree to disagree; there’s not much clear-cut right or wrong here.
Additionally, as we’ll see in a moment, since Flag Code bears no legal weight, its adherence has traditionally become more of attitude than of action.
2: What Does the Code Actually Say?
Interpretations aside, several of the claims made in the Twitter thread are factually bunk. Some are true, and we’ll identify those as well. But it’s essential that we approach this topic truthfully.
One of the tweets includes this misleading statement: “Not covered in the ‘Respect for Flag’ section; standing/kneeling/sitting. That’s considered a conduct violation, not disrespectful.” The flawed premise here is that only violations of the “Respect for Flag” section are considered disrespectful, which is simply untrue; all violations of flag code are considered such. The tweeter assumes that because one item falls under Title 36, Chapter 10, §171. Conduct During Playing, and the other Title 36, Chapter 10, §176. Respect for Flag, that the two categories should not be measured equally.
But let’s address each claim individually, each from subsections of Title 36, Chapter 10, §176. Respect for Flag:
The first claim cites, “(c) The flag should never be carried flat or horizontally, but always aloft and free” and features images of the popular spreading of a large flag across a sporting field. This is accurate, but it will be discussed in my third section. Factually, it is valid.
Next, “(d) The flag should never be used as wearing apparel, bedding, or drapery,” with images of flag-stamped clothing, such as shirts, socks, swimwear, etc. I take issue with his interpretation here, as I see a legal distinction between “the flag” and “the image of the flag.” A pair of pants made from a retired flag, for instance, would be inappropriate. A pair of pants bearing the image of the flag, I disagree. A more legitimate grievance for this section could have been the practice of Olympic champions to drape the flag around their shoulders following victory, though even this might not qualify as “wearing apparel” or “drapery.” This claim is murky at best.
The following excerpt is separated into three tweets: “(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard.”
On advertising, I would again cite “the flag” vs. “the image of the flag,” although “any manner whatsoever” could arguably include both. The embroidery and printing/impression of the flag undoubtedly refer to the image, as these designs are inherently artistic reproductions of the flag, not the flag itself. Thus, for the three tweets in subsection (i), the first is arguable, and the other two are valid.
Lastly, “(j) No part of the flag should ever be used as a costume or athletic uniform.” Again, there is a legitimate distinction between “the flag” and “the image of the flag.”
3: What Is the Intent?
If you see no distinction between burning a flag and putting its image on a throw pillow, you’re an idiot. I don’t know how to tell you more subtly that your brain cells are likely on the brink of extinction.
Flag Code states that the flag should be hung “union left,” meaning that the stars should be in the upper left corner, vertically or horizontally. So if a woman hangs her flag vertically but (mistakenly) simply rotates it 90 degrees, making it union right, is she disrespecting the flag? Legally, yes. But in her heart, not remotely. This is not the ideal, and it is technically inappropriate, but her intent is clearly to honor her country.
What if a man posts his flag just before leaving for work, rather than at sunrise as suggested? Again, this is not the ideal, but his intent is to honor the flag and display American pride.
Spreading the flag across the outfield at a baseball game, though technically inappropriate, is intended to declare the same message as the playing of the anthem itself: reverence, loyalty, and unity.
These infractions are in no way comparable to outright protest against the flag and the republic for which it stands. I would love to see the Left characterize kneeling, sitting, or stretching during the national anthem as a manifestation of love and reverence for America, or even a desire to unify the public around its ideals.
As a black, liberal, retired Marine expresses in Tim Allen’s “Last Man Standing,” it is undeniably your right to protest the flag and the anthem, but don’t pretend for a second that it makes you equally patriotic with those who stand at attention with hand over heart.
The Left may never understand this, but there is a massive difference between politics and patriotism.
Unlike the writer of this viral thread, I won’t conclude by suggesting that Leftists look in the mirror, as I support their Eighth Amendment right against cruel and unusual punishment. But I will say this: if you want America to be Europe, go to Europe; if you want to show your love for America, display the flag proudly and don’t mislabel its mistreatment as heroism; and if you want to sound intelligent, read a book.