Today is Flag Day. It was established by an act of Congress in 1949 and set on June 14, the same day the Second Continental Congress adopted the flag as the symbol of the country in 1777.
If you feel so inclined, you can burn the flag. In 1989, the Supreme Court in a 5-4 decision in Texas v. Johnson upheld that burning the American flag is protected by the First Amendment, which safeguards freedom of religion, speech, the press, assembly and petition. In response to this decision, Congress passed the Flag Protection Act of October 28,1989, and two days later, the plaintiff in the Texas case, Gregory Lee Johnson, joined Shawn Eichman, David Blalock, and Scott Tyler and burned three American flags on the steps of the U.S. Capitol. This incident led to a legal challenge of the constitutionality of the Flag Protection Act, which reached the Supreme Court in 1990. In that case, United States v. Eichman, a 5-4 majority of justices struck down the act as unconstitutional.
After the most recent presidential election, scattered protesters burned flags (for example, on the campuses of American University in Washington D.C. and Hampshire College in Amherst, Massachusetts, and outside the Trump International Hotel and Tower in New York). In response and apparent amnesia about the protected status of flag burning, Trump tweeted on November 28, 2016: “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!”
Flag burning is just that—a truly incendiary act—which causes countless people to lose their powers of reasoning (forgetting, for instance, the difference between democracy and totalitarian government) and their understanding and appreciation for the bedrock principles of the First Amendment. This conundrum was not unanticipated by the Supreme Court. Justice Anthony Kennedy, who voted with the majority, wrote in his concurring opinion in Texas v. Johnson, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
There’s something worse about our treatment of the flag than setting it on fire. While folks get their shorts in a knot on the very rare occasions when someone burns a flag, there seems to be no controversy whatsoever about the widespread neglect of the American flag by public institutions, businesses, and private citizens. All these entities and individuals are overlooking the regulations regarding the proper display and use of the flag as spelled out in the National Flag Code (Title 4, United States Code, Chapter 1), legislation first passed by Congress as public law in 1942 and frequently amended, most recently on March 28, 2017 (P.L. 115-305, a modification to encourage the display of the U.S. flag on National Vietnam War Veterans Day, https://www.congress.gov/bill/115th-congress/senate-bill/305).
My Mother was a stickler about observing proper care and respect for the flag. The things I remember her explaining to me and my sister – the flag should only fly during daylight hours, it should not be raised (or taken down) during inclement weather, it should be folded a certain way, it should be replaced when it becomes tattered or dingy – indeed come straight out of the National Flag Code (https://www.legion.org/flag/code).
Some other regulations: the flag should not be displayed on a float in a parade except from a staff, it should not be draped over a vehicle or used as a cover when unveiling a statue or monument, it should never touch the ground, floor, or water, it should not be used as wearing apparel, and when draped over a casket, the union should be at the head over the left shoulder. While the Flag Code states the flag should not be displayed during inclement weather (just like I was taught), it seems to fudge by stating it is OK “when an all weather flag is displayed” (which apparently is a flag made of nylon and which I personally think is a cop out). As for when to display the flag, the Flag Code states it is “the universal custom to display the flag only from sunrise to sunset… However, when a patriotic effect is desired, the flag may be displayed 24 hours a day if properly illuminated during the hours of darkness.” I strongly suspect “patriotic effect” has really come to mean “laziness.”
Flags used to be mainly flown on government buildings and at public schools. Now they are ubiquitous on the landscape – outside fast-food franchises, shopping malls, bars and taverns, in people’s front yards, and those freakishly humongous ones flapping above big-box stores and car dealerships – and these flags are being universally neglected.
Channeling my dear, departed Mother, I have been galled about this situation for a number of years. It is particularly annoying in this era of hyper-patriotism, when it is easy to hoist a flag and even easier not to take proper care of it. In the last nine years, as my husband and I have driven twice a year across the country from Minnesota to northwestern Mexico, I have observed hundreds of mistreated flags in towns, cities, and rural settings, mostly in red states, but also in a few blue ones, like Minnesota. Tattered flags, flags turned dingy by car fumes in high-traffic areas, unlit flags flying at night, flags in the rain, snow, and sleet. There’s nothing quite so pathetic as a rain-soaked flag, whatever material it is made of, hanging from a staff like a wet dishrag.
One of the more recent tattered flags we saw on our travels – photographed on May 6, 2017 – was flying at the Bennett County American Legion Post 240 in Martin, South Dakota. It was frayed. It was not taken down at sundown. It was not properly lit. I can’t say for sure, but I suspect it flies during the thunderstorms and blizzards that are so characteristic of South Dakota’s weather. I am not dissing the American Legion. In small towns all across the country, American Legion Posts are among the last bastions of community cohesion. And perhaps today the members of Post 240 are putting up a new flag, as is often the tradition among American Legions on Flag Day. If so, good for them; however, they still have a few other Flag Code violations they could remedy.
When a new flag is raised, on Flag Day or any other day, the old one must be properly discarded. In the National Flag Code, this is known as the Disposal of Unserviceable Flag Ceremony, which recommends that when a flag is in such condition that it is no longer a fitting emblem for display it should be destroyed in a dignified way, preferable by burning.
For an account of the legal history of flag burning as a form of protest, see:(https://constitutioncenter.org/blog/a-history-of-the-flag-burning-controversy)