It’s the law

Is it illegal to turn your back on the flag, as Saleh Abou-Saleh was accused of doing? Can you be fined or jailed for refusing to say the pledge of allegiance? How about burning the U.S. flag in protest — is that against the law?

The answer to all of those questions is no. True, there is a Flag Code written into federal law (Title 4 of the U.S. Code) that governs patriotic etiquette — everything from which way the union should face when the flag is displayed to how to stand when the national anthem is played — but there are no penalties for violating the code. Until 1989, Title 18 of the U.S. Code did contain criminal penalties for desecrating the flag by burning, trampling or mutilation, but the Supreme Court struck down this law in Texas v. Johnson. (Forty-six years before, in 1943, the court had already ruled that any law requiring people to recite the pledge of allegiance would be unconstitutional.) And despite many attempts over the years, Congress has never managed to pass a resolution calling for adding an amendment to the Constitution forbidding flag desecration.

The code has absolutely nothing to say about turning one’s back on the flag. But it does contain some provisions many people might find surprising. “The flag should never be used for advertising purposes in any manner whatsoever,” it unequivocally declares. Nor should the flag be used as wearing apparel or depicted on napkins or other disposable items. And “no part of the flag should ever be used as a costume or athletic uniform.”

Many code provisions are very similar to traditional religious taboos against the desecration of icons and holy statues: The flag must not touch the ground; it may be disposed of only by fire; when it passes in a parade, all observers must reverence it by touching their heart. One passage in particular — which describes why a flag lapel pin should be worn on the left, near the heart — could easily be viewed as objectionable by Jews, Christians or Muslims who follow the injunctions in the Torah, Bible and Koran against idolatry:

“The flag represents a living country and is itself considered a living thing.”

The U.S. Flag Code and its legal history are detailed in “Civics in Cyberspace: The Robert H. Michel Civics Forum,” a curriculum project of the Dirksen Congressional Center, at www.lakeland.cc.il.us/~civics/Flag_Code.html.

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